The draft law known as the Internal Security Package is currently being discussed at the Parliament. It is a source of great concern for democracy, human rights and the rule of law in Turkey. It has three fundamental shortcomings.
- It expands the police powers without an appropriate control/supervision mechanism.
- It transfers powers of the Judiciary to the police and to the Governors and Prefects
- It infringes upon individual rights and freedoms
The grounds for introducing these amendments are presented as the necessity to take new measures in light of the recent events which supposedly became tools for propaganda of terrorist organizations. However, it is clear that the outcome of such measures is to tilt the balance between security and freedom in favor of security.
According to the draft provision amending the article 4 of the Law on Police Duties and Entitlements, the police officer will have the authority to search the person, possessions and inside their vehicles when sufficient doubt exists. For the conduct of this search, the written or verbal order of the law enforcement commander deployed by the Chief Public Official (Governor or Prefect) will be sufficient. Such order will be referred to the approval of a judge in 24 hours thus removing the requirement of prior authorization by a prosecutor or court.
This amendment transfers the authority of the Prosecutor to the Public Administrative Officials in matters of judicial proceedings which entails the executive’s intervention to judicial proceedings. It is in conflict with the article 20 of the Constitution which requires a written order in order to conduct a search. The provision also runs the risk of arbitrariness due to lack of effective control mechanism.
The provision amending the article 91 of the Criminal Procedural Code gives the police the power to detain people up to 48 hours in case of flagrante delicto, without the requirement of any judicial authorization. The law enforcement official is obliged to inform the Public Prosecutor, after 24 hours for individuals, 48 hours in case of collective crimes. This is an incommunicado detention without the assurances inherent in the detention system against ill-treatment.
According to the existing rules of the Criminal Procedural Code, the decision to take someone into custody depends on a compelling need for the investigation and on the existence of solid evidence giving rise to a suspicion of committing crime. In the Turkish criminal justice system this decision is given by the prosecutor who is charged with the investigation.
Moreover, judicial control in cases of deprivation of liberty serves as guarantee against any arbitrary detention and it provides safeguards against the risk of ill-treatment, which more likely at the early stage of detention and against the abuse of powers by law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures.
The Bill expands the scope of the article 16 of Law on Police Duties and Entitlements on the use of force and weapons. The amendment to the article allows police officers to use fire arm when faced with persons who attempt to use Molotov cocktail and other similar incendiary, asyphixiant, inflammable weapons. The amendment ignores the principles of gradual use of force, proportionality and absolute necessity. This provision is particularly concerning because of the increasing police violence and the impunity granted to the police is already a structural and acute problem in Turkey. During the Gezi protests 60 persons were killed and 7832 were injured and during the demonstrations for Kobane 35 were killed. However very few police officers were prosecuted and even less were sentenced. Necessary steps to combat impunity and to strengthen the accountability measures for the use of firearms should be taken without any delay.
According to the European Convention on Human Rights the permissible circumstances for the use of firearms are as follows: (a) self-defense or defense of others against imminent threat of death or serious injury (b) to prevent the escape of a person for whom there is a warrant for their arrest (c) in order to limit civil disorder. Nevertheless, even in these three circumstances, the use of firearms should result from a situation of absolute necessity and it should be proportional to the lawful objectives.
The amendment also provides for the use of colored water in water cannons allowing the police force to “tag”, recognize and capture participants of a demonstration even days after the event.
The provision amending the Law on Provincial Administration, gives powers to the Governor to give orders to law enforcement officials to take urgent measures such as investigating (search and seizure, collecting evidence etc) and finding perpetrators of a crime.
Under the current Turkish criminal justice system the public prosecutor is in charge of investigating any criminal conduct. The investigation and collection of evidence are the prosecutor’s responsibility. Measures such as search and seizure, interception of communications are decided by judges upon the request of prosecutors. Transfer of these powers of Judiciary to the Executive is neither compatible with the principle of separation of powers nor with the Turkish criminal justice system.
Right to private life and right to correspondence are further curtailed by allowing wire-tapping and recording phone conversations for up to 48 hours (72 hours for collective crimes) before submitting the decision to the approval of Ankara Heavy Criminal Court Judge. The article still maintains the amendments of 2005 which allows for wire-tapping and recording phone conversations following an order from the Chief of Police or Head of Intelligence Department.
The amendment will authorize the police to record and listen to private phone conversations without a court order, up to 72 hours.
Under the amendments introduced to Law on Assembly and Demonstrations , to participate in the demonstrations with symbols and emblems of terrorist organizations, carrying posters, banners, currency, pictures, plates, equipment bearing characteristics of a criminal offence will be punishable by imprisonment for up to three years. Similarly a draft amendment to the Anti-Terror Law contained in the Security Bill criminalizes the covering of one’s face while participating to a demonstration.
According to the case-law of the ECtHR the State authorities have the positive obligation to protect the right to freedom of peaceful assembly. The intervention of the police by use of force is justified only if violence is resorted during the demonstration. As of September 2014, there are 45 judgments concerning specifically the excessive use of force to break up unlawful but peaceful demonstrations. Both general and individual measures indicated by the Committee of Ministers of the Council of Europe should be implemented and accordingly the Law on Meetings and Demonstration Marches (Law No. 2911) should be revised in order to bring it in line with the standards set out in the ECtHR case-law without further delay.
 ECtHR judgment of Ladent v. Poland (2008) para. 72