Human Rights Foundation of Turkey’s (HRFT) Critique
of the New ‘Internal Security Package’ Draft Law
With the Draft Law known by the public and media as the “Internal Security Package” the government is demanding the authority to “detain and imprison” with no legal restriction and judicial review whatsoever. This Draft Law, which constitutes a planned operation to completely obliterate the principles of “the rule of law” and “the separation of powers” by handing judicial powers over to the government, violates the Constitution of Turkey, international conventions Turkey is party to, the rulings of the European Court of Human Rights, and most significantly, common sense and human conscience. This Draft Law must immediately be revoked!
The “Draft Law on Changes to be Introduced to the Law on the Duties and Powers of the Police and to A Number of Other Laws and Decree Laws” no.1/995 submitted by the AKP Government on 24 November 2014 to the Presidency of the Grand National Assembly of Turkey (TBMM) was approved in previous days by the TBMM Internal Affairs Commission. It is expected to be brought before the TBMM General Assembly in the coming days.
Known as the “Internal Security Package” by the public and media, this Draft Law, is a typical example of the “Omnibus Bill” [a proposed law that covers a number of diverse or unrelated topics] that the AKP government has turned into a form of legislation in order to eliminate democratic inspection and transparency. This Draft Law, which is made up of a total of 43 Articles, proposes changes to a total of 21 Laws, among them first and foremost the “Law on the Duties and Powers of the Police”, “Law on the Organization, Duties and Powers of the Gendarmerie”, “Law on Meetings and Demonstrations”, “Anti-Terror Law”, “Turkish Penal Code”, “Code of Criminal Procedure” and “Law of Provincial Administration”. However, the Draft Law was combined with other draft laws during its debate at the TBMM Internal Affairs Commission, thus turning it into an enormous “Omnibus Bill” comprising 132 Articles, and an explicit effort was made to avoid public debate.
The general preamble of the Draft Law states, “Since recent social events have turned into the propaganda of terror organizations and demonstrators are threatening the security of life and property of citizens it has become compulsory to introduce new measures without disrupting the balance of freedom–security”. The Draft Law is an Omnibus Bill, and consequently contains other preambles as well, however, as an organisation carrying out a struggle for human rights, we will mostly try to assess proposed regulations regarding personal security and freedom based on this general preamble.
However, we would first like to elaborate on the phrase “balance of freedom – security” included in the preamble. This pair of concepts, as a dilemma, was brought before the peoples of the world following the attack carried out on the “Twin Towers” on 11 September 2001. In the ensuing process, States manipulated the threat of “terror” to an extraordinary degree to create a security “paranoia” that held sway over the entire world. Societies were forced to ponder the dilemma “Freedom, or security?” and were persuaded/forced to accept an increase in military and policing measures, and the consolidation of authoritarian modes of administration. This led to the institutionalization of the exception, and a veritable global state of emergency was created.
In our country, too, the concept of “security” has been the basic foundation of the administrative modes of all governments throughout the history of the Republic. All social demands for the broadening of the sphere of rights and freedoms always ended up hitting the wall of “security”. As we have repeatedly pointed out, since it does not possess the idea of democracy as a virtue, the AKP government, too, has from the very beginning been on good terms with the state mentality equipped with the “security” paranoia, and as the perception of a threat against its authority increased, it thoroughly internalized this mentality. The new “Internal Security Package” is a sign of strides taken in this process of internalization.
In fact, the concept of “reasonable doubt”, rearranged in the previous judicial package, clearly reveals the mentality of the AKP government: As is well known, the judicial process that uncovered the malpractices of the AKP had been initiated on the grounds of “reasonable doubt”. For many years, investigations against Kurds, leftists and dissidents from a wide range of backgrounds had been launched on the grounds of “reasonable doubt”. For years, as human rights organizations, we opposed this state of affairs, and voiced the arbitrary and unlawful nature of this practice. Following the December 17, 2013 corruption investigation operations, a change introduced in accordance with Law No. 6526 dated 21 February 2014, the concept of “reasonable doubt” was replaced with “strong suspicion based on concrete evidence” in order to block new operations to be carried out within the scope of the corruption investigation. This change was introduced on the pretext “Citizens are facing unjust operations, we are receiving a considerable amount of complaints, so we are expanding the areas of freedom of people”. However, when the AKP initiated operations against the Gülen movement, it realized that the regulation it had introduced to save itself was now blocking its own path, and reintroduced the concept of “reasonable doubt” it had removed itself, claiming “We are increasing the freedoms of citizens” this time on the basis of a discourse proclaiming “This was how it was before, we are bringing it back”. The manipulation of law in such a straightforward and arbitrary manner amounts to an order replacing the law, and the name this deserves is beyond totalitarianism: This is a mode of administration we come across in pre-modern times, and it is known as tyranny.
Considered in this context, it becomes clear that this Draft Law is not merely an attempt on behalf of the political authority to restrict freedoms, suppress social opposition and broaden the powers of the police. It is also an effort to completely dissolve the judiciary from the state system. In other words, by handing judicial powers over to the administration, it is an operation to completely abolish the principles of “the rule of law” and “the separation of powers”.
Critique of A Number of Regulations in the Draft Law in View of Personal Security and Freedom
1) The changes proposed to the Code of Criminal Procedure (CMK) in the Draft Law gives security chiefs to be appointed by administrative chiefs the authority to implement preventive detention up to 24 hours in crimes again rendered catalogue, including first and foremost “crimes involving force and violence during social events”, “all crimes within the scope of the Anti-Terror Law (TMK)” and “crimes detailed in changes to the Law on Meetings and Demonstrations”, and up to 48 hours in crimes committed during social events in which violent incidents may spread in a manner that may lead to the serious deterioration of public order, and in collective crimes. The Draft Law also arranges that security forces will notify the Public Prosecutor about the procedures carried out at the end of the durations stated above. It also arranges that person(s) will appear before a judge in 48 hours at the latest, and within 4 days in collective crimes.
It goes without saying how gravely this implementation will threaten personal security and the prohibition of torture. As HRFT, for years, we have persistently asked for detentions to be carried out under judicial guard so detainees can benefit from procedural assurances aimed at preventing torture. However, we know from numerous judicial rulings that in practice, security forces often abstain from meeting these assurances. This avoidance by security forces is at times extended as far as carrying out undeclared detentions, the most extreme examples of which we observed during the Gezi Resistance and the Kobanê Solidarity Actions. In conclusion, the broadening of the detention powers of law enforcement officials with no judicial review in this manner will lead to the violation of the prohibition of torture, which carries absolute character.
2) According to the change proposed to the “Law of Provincial Administration” in the Draft Law, a Governor, who occupies a position directly tied to the political authority, will be authorized “if he/she deems necessary” to issue direct orders to security chiefs and officials to take urgent measures “to throw light upon the crime and find the perpetrators”. This completely eliminates the presence/inspection of Prosecutor and Judge regarding urgent measures such as apprehension, search and confiscation. In other words, judicial powers will be tied, via district and provincial governors, to the government/executive power. This amounts to a wholesale trampling on the principle of the separation of powers.
In a similar manner, a prison sentence from 3 months to 1 year is proposed for those “who act in violation of decisions and measures taken by the Governor and issued or notified according to relevant procedure in order to provide public order and security or the security of life and property of persons or to prevent social incidents”.
3) With the Draft Law, for the stop-and-search of the bodies, belongings and vehicles of persons, described as “preventive enforcement” and which merely requires “reasonable doubt based on the experience of the police officer”, the verbal order of a security chief alone will suffice. Besides, it is proposed that the “security chiefs” that will possess the stop-and-search authority will be “assigned by administrative chiefs within the guidelines to be determined by the Ministry of Internal Affairs”. The allocation of a period of 24 hours for the decision of the security chief to be presented to the judge on duty clearly provides an opportunity to carry out undeclared detentions. With this arrangement, which excludes the Public Prosecutor and the will of the Judge from the system, the powers and functions of the judiciary are being usurped, and a highly important ‘preventive measure’ that orients the judicial inquest is exposed to the influence of the executive power. According to Article 119 of the current CMK, a judicial decision is required for the implementation of the measure of searching a person, his or her belongings or his or her vehicle. Law enforcement officials may use this authority only in non-delayable cases with the order of the Public Prosecutor, and in cases when the Public Prosecutor is inaccessible, as an exception and only by the written order of the law enforcement chief. Yet with this exceptional power becoming the rule, Public Prosecutors will no longer act as the executive, and Judges will no longer act as supervisors in judicial inquests, and the split of authority between security forces and the Prosecutor’s Office will result in serious failings in the judicial security of citizens.
4) In addition to the power to apprehend as included in the current Law on the Duties and Powers of the Police (PVSK), the Draft Law entrusts the police with two new powers, “to take persons under protection” or “to move persons away” depending on the particularities of the action and condition. It is clear that these ambiguous powers will mean relinquishment from procedural securities against torture that must be carried out from the moment of detainment on, and thus render undeclared detention effective.
5) The Draft Law further broadens the police’s existing power to use firearms. The current PVSK states that this power, in essence, can be exercised in the event that there is an attack on the police officer or some other person, and seeks conditions of legitimate self-defence. According to the Draft Law, other than an attack on the police officer or another civilian, the police is given the authority to use firearms in the event of attacks against work places, residence, public buildings, temples, schools, dormitories and vehicles, and no reference is made to the concept of legitimate self-defence, with only an emphasis on “moderation”. In addition to this, legal grounds are brought to the use of firearms if there exists a possibility of an attempt to attack. Another issue worth mentioning is that the attacker’s possession of a firearm is not set as a condition for the police to use firearms. Fire works, Molotov cocktails and similar explosive devices, piercing and sharp objects, stones, sticks, iron and elastic bars, bruising tools such as iron balls, and catapults are included within the scope of weapons against which the police will be authorized to use firearms.
As the HRFT, when in 2007 changes were made to the PVSK, we had expressed our concern that the changes would render the powers of the police limitless and arbitrary, and warned the authorities. The fact that, since 2007, 183 of our citizens have lost their lives due to the use of firearms by the police proves how right our concerns were. Regarding the use of force by law enforcement officials, both United Nations (UN) regulations (UN Code of Conduct for Law Enforcement Officials, UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials etc.) and the right to life as arranged in Article 2 of the European Convention on Human Rights (ECHR) and jurisprudence and standards of the European Court of Human Rights (ECtHR) state that the use of deadly force is permissible only to protect life, in line with principles of necessity and moderation, and as a last resort. In the event that the Draft Law is approved as it is, the disproportionate/excessive/arbitrary use of firearms and practices of summary execution will increase, and thus violations of the right to life will reach even more perilous levels.
6) With the Draft Law, the duration for the identification, monitoring, signal data tracking and recording of communications by the police and gendarmerie forces, by the written order of the Chief Police Constable, General Commander of the Gendarmerie or Intelligence Office Head, and without the approval of a Judge, is effectively increased to 72 hours, in view of the proposed regulation that the Judge may issue a verdict within 48 hours. In this manner, the arbitrary practice of wiretapping and the violation of the secrecy of communication and the right to privacy, which are already existing problems, will further increase, leaving no one in the country who is not wiretapped. The Draft Law also introduces a provision rendering the Ankara High Criminal Court Judge the only authority for the whole of Turkey. Since this Judge will be appointed by the Supreme Board of Judges and Prosecutors (HSYK), the independence and impartiality of which has been compromised in view of its principles of appointment and operational procedures, all manners of pressure and manipulation will be rendered possible. In addition to this, the Draft Law also proposes that the Prime Ministry Inspection Board will be authorized to carry out inspection and present its findings to the Grand National Assembly of Turkey Security and Intelligence Commission which works according to a principle of secrecy, thus hijacking all its activities from public scrutiny.
7) The arrangement proposed by the Draft Law to the Law on Meetings and Demonstrations (Law No. 2911) broadens the definition of the concept of weapon. As stated above, tools such as fire works, Molotov cocktails and similar explosive devices, piercing and sharp objects, stones, sticks, iron and elastic bars, bruising tools such as iron balls, and catapults are included within the scope of the definition of weapon, and taking part in meetings and demonstration rallies in possession of such tools, and participating in such events by wholly or partially covering the face with fabrics etc. are regulated as crimes punishable with a minimum prison sentence of two years and six months. In addition to this, criminal acts punishable with prison sentences from six months to three years are defined for persons bearing emblems of organizations, or clothing resembling uniforms featuring emblems, and for carrying posters, banners or placards “inconsistent with the law” or chanting slogans of this nature while taking part in meetings and demonstration rallies, all regulations that clearly will be implemented with no restriction. The present Law No. 2911, which renders the right impracticable, and serves to declare any protest unlawful in breach of universal and international human rights standards, is now additionally making it possible to inflict prison sentences.
The change the Draft Law proposes to the Anti-Terror Law, on the other hand, departs from a conviction described as “meetings and demonstration rallies that turn into the propaganda of terror organizations” thus stipulating a prison sentence of three to five years in the event that persons wholly or partially covering their faces during such events without resorting to violence; and in the event of the occurrence of any type of violence, or the possession of persons of weapons under the new broadened scope of that term, a minimum prison sentence of four years. As is seen, those who completely or partially conceal their faces during assemblies and demonstrations will potentially face heavy sentences, even if they do not resort to violence.
In addition to this, according to the proposed changes to the Code of Criminal Procedure [CMK] included in the Draft Law, all the acts listed above, in other words, acts such as the use of the right to congregate and demonstrate and the act of propaganda, are included within the scope of the catalogue crime known as automatic arrest.
In brief, these regulations constitute an attack both upon the freedom of assembly and demonstrate and the freedom of expression. For years, and much more frequently since the Gezi Resistance, we have tried at every opportunity to emphatically state that the freedom of assembly, along with the freedom of expression, constitute the foundations of a democratic society, and that therefore, any intervention to the freedom of assembly and the freedom of expression of demonstrators renders meaningless, and endangers democracy. At present, every year, tens of people lose their life due to the disproportionate/excessive/extreme intervention of the security forces to the freedom of assembly and demonstration, and hundreds of people suffer serious injury and organ loss. Thousands of people are detained, and hundreds of people are arrested. In the event of the approval of this Draft Law, we will face an even more perilous state of events.
8) The Draft Law introduces provisions that expand the statute of limitations regarding recourse claims both in Law no.2911 and the Law on the Compensation of Damages that Occurred due to Terror and the Fight Against Terror. Recourse lawsuits that have virtually turned into a revenge tool of the State regarding files that have been awarded compensations by, for instance, the European Court of Human Rights, because of violations carried out by the State, will now hound relevant survivors for years.
The brief assessments we have made above reveal that this Draft Law, claimed to be an “internal security reform” by the political authority, but which in fact gives the government the authority to “kill and imprison” with no legal restriction and judicial review whatsoever, constitutes in and of itself a threat to personal security and freedom.
In the event that this Draft Law is approved as it is, we will enter a new period of state of emergency in which provincial and district governors become judicial law enforcement chiefs, law enforcement chiefs carry the power of preventive detention, participants in social demonstrations are easily arrested, the freedoms of expression and organization are restricted, the police, with broadened powers to use firearms, will arbitrarily draw their weapons on the public and will carry out body and vehicle searches on anyone at will.
This Draft Law, as a whole, constitutes a brazen violation of the Constitution, the international conventions Turkey is party to, ECHR decisions, and most significantly, common sense and conscience. Therefore, it must immediately be revoked.
Human Rights Foundation of Turkey
 According to HRFT Documentation Centre data, only within the year of 2014, 21 persons lost their lives due to the intervention of law enforcement officials to meetings and demonstrations, 524 people were injured, 4944 were detained and 969 people were arrested.