US embassy cable - 03ANKARA4256

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 004256 
 
SIPDIS 
 
 
DEPARTMENT FOR EUR/SE 
 
 
E.O. 12958: DECL: 07/08/2013 
TAGS: PGOV, PREL, PHUM, TU 
SUBJECT: MOJ OFFICIAL BLAMES "NARROW MINDED" JUDGES FOR 
SUSPENSION OF TORTURE CONVICTION 
 
REF: 02 ANKARA 8881 
 
 
(U) Classified by Polcouns John Kunstadter.  Reasons 1.5(b) 
and (d). 
 
 
1. (C) Summary: In pursuing why the Turkish Appeals Court has 
ruled to suspend the sentences of two police convicted of 
torturing a detainee in 1997, we have learned that a recent 
amendment to the criminal code outlawing the suspension of 
torture convictions does not apply to pre-existing cases. 
However, a Justice Ministry contact blamed the ruling on 
"narrow minded" judges skeptical of the GOT's EU-related 
legal reforms.  A human rights attorney called the ruling 
"outrageous" and argued the Board should have considered the 
recent amendment in its decision.  Given that many jurists do 
not support recent legal reforms, similar retrograde rulings 
are likely to continue periodically until all pre-reform 
cases have been concluded.  End Summary. 
 
 
--------------------------------- 
Suspension Ends Long Legal Battle 
--------------------------------- 
 
 
2. (U) The Court of Appeals General Penal Board ruled June 24 
to suspend the sentences of two policemen convicted of 
torturing a detainee in 1997.  In a 15-8 decision, the Board 
determined that the policemen should be given "one more 
chance" in light of their good behavior during the trial and 
the absence of any prior criminal records.  The Board's 
ruling, which is final, brings an end to a long, seesaw legal 
battle over the sentencing of the officers.  In the initial 
trial, a Bursa court convicted the policemen, Ramazan Aktas 
and Turhan Sumer, and sentenced them to 10 months 
imprisonment for torturing suspect Orhan Buyak in 1997 in an 
effort to make him confess to a crime.  However, the court 
suspended the punishment, taking into consideration "the past 
behavior of the policemen and the view that they will not 
commit a crime again."  An appeals court later overruled the 
suspension and sent the case back to the lower court with 
instructions to implement the sentences.  However, the lower 
court stuck by its original decision, thereby sending the 
case to the General Penal Board for a final ruling. 
 
 
-------------------------------- 
January Amendment Does Not Apply 
-------------------------------- 
 
 
3. (U) The suspension comes despite a January amendment to 
the penal code revoking the authority of judges to suspend 
sentences in torture cases (reftel).  Parliament did not have 
the option of applying the amendment to pre-existing cases -- 
under Turkish law, legal amendments that are beneficial to 
defendants can be applied retroactively, but those that are 
prejudicial to defendants cannot.  Since the crime in this 
case was committed well before the amendment, the decision to 
suspend the sentences is legal. 
 
 
------------------------------------ 
MOJ: Judges Reject Spirit of Reforms 
------------------------------------ 
 
 
4. (C) In a July 3 discussion with us, Justice Ministry 
Director General for International Relations Abdulkadir Kaya 
noted that the Board's decision, while it may be technically 
legal, contradicts the spirit of recent EU-related amendments 
and raises doubts about the depth of GOT commitment to 
judicial reform.  Kaya acknowledged that judges and 
prosecutors are generally skeptical of the reforms and 
resentful of GOT efforts to change their practices.  The 
Justice Ministry, in its training seminars on the reforms, 
encourages judges and prosecutors to take into account the 
latest legal amendments, even if those amendments do not 
apply to the case in hand, he said.  However, Kaya said, 
Ministry speakers usually get a frosty response from jurists, 
who tend to sympathize with police and view advice from 
Ankara as meddling.  "They say, 'We understand the reality in 
small towns.  We understand the position police are in.  You 
are just sitting in an office in Ankara making laws,'" Kaya 
said.  Many judges and prosecutors have a "narrow minded" 
perspective, and it will take time to change their views, he 
averred. 
 
 
--------------------------------------- 
Board of Judges Cannot Change Attitudes 
--------------------------------------- 
5. (C) Kaya rejected the suggestion that the Supreme Board of 
Judges and Prosecutors should discipline jurists whose 
actions contradict the spirit of judicial reform.  The role 
of the Board, he asserted, is to enforce the letter of the 
law.  If the Board took action against a jurist for a 
decision that was technically legal, it would be 
inappropriately acting as an appeals court, he argued. 
 
 
--------------------------------------------- -- 
Attorney: Police Given Second Chance to Torture 
--------------------------------------------- -- 
 
 
6. (C) Yusuf Alatas, attorney and Human Rights Association 
vice chairman, ridiculed the Penal Board's "outrageous" 
decision to suspend the sentences.  "They want to give them a 
second chance?  A second chance for what, to commit torture?" 
he asked.  Alatas argued that the Board should have 
considered the January amendment in making its decision. 
Unfortunately, he averred, the judiciary over the past 20 
years has been staffed largely with "nationalists" who oppose 
human rights reform, particularly among jurists appointed by 
the Nationalist Movement Party (MHP) during its years in 
government. 
 
 
------- 
Comment 
------- 
 
 
7. (C) Viewed from a distance, the suspension of the torture 
sentence might appear as an anomaly in the context of an 
overall trend toward GOT human rights reform.  But there has 
never been consistent, uninterrupted progress on torture or 
any other human rights problem in Turkey.  The reform current 
has a powerful undertow.  As Justice Minister Cicek, Deputy 
Chief Justice of the Supreme Court Kilic, and former Justice 
Minister Celikel have bluntly told us, judges and prosecutors 
are among those least supportive of the new legal amendments 
and of reform in general.  Given that reforms designed to 
increase punishments for certain crimes are not retroactive, 
we can expect to continue to see rulings like this latest one 
periodically for the next two to three years, until all the 
pre-reform court cases have been cleared. 
PEARSON