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Medizinische Flüchtlingshilfe Bochum e.V.

Gerechtigkeit heilt –
Der internationale Kampf gegen Straflosigkeit

Internationaler Kongress vom 14. bis 16. Oktober 2005

Hülya Üçpınar, Bar Council İzmir, Turkey


1 million 680 thousand were filed as criminals and potential criminals;
650 thousand were detained and all tortured;
388 thousand persons were restricted to go abroad;
210 thousand court cases were opened and 7 thousand death penalties were demanded by prosecutors;
517 death penalties were decided and 50 of these persons were executed;
171 died under torture;
299 persons died in prisons;
it was officially announced that 43 persons committed suicide in the custody;
30 thousand were fired from their jobs for constituting a threat to the regime;
citizenships of 14 thousand were withdrawn;
almost all the laws, including the constitution, were changed and became provisions of restrictions and prohibitions for the citizens.

The list goes on with such numbers of acts of the last military coup in Turkey, which took place in 1980. This is the list of the oppression which took place in ten years after the coup. Violations and oppression until this day and during the time of the last 19 years of the war against the Kurds are not included in this list. To state that more than 30 thousand people have died during the war should give an idea about the rest.
The junta of course prepared a shield for itself. It is the temporary (still deemed temporary after 25 years) provisional article 15 of the Constitution which says that junta members are untouchable for their acts during the specific period of time.

You can imagine the individual and social traumas the coup has brought to our lives. People try to recover and have spent a lot of effort to improve their social lifes; all by themselves. However, we are still not successful in bringing the members of the junta to court and still deal with the effects of it.
The problem is not limited with the lack of possibility to legally charge the junta but the impunity itself. Impunity has been provided to the members of this aparatus of oppression as well as the torturers.
People face severe types of traumata by the acts of security forces and paramilitaries with approval or intervention or condone of the state. Disappearances, killings, house raids, torture, detention, rape, imprisonment, isolation, exile, deportation from the villages, destrution of villages, ...  Methods and dose of state oppression may differ, however it affects the public as well as the individuals. The affects are deep since the state oppression is organized and systematic.

It should be underlined once more that oppression and traumata caused by the state are not limited with the period of the coup, since the oppressive circumstances continue in different levels and forms in the time being, which brings us to talk about cumulative trauma as well as current trauma.

There is another point to be mentioned: The intensity of oppression and traumatization has not followed a rough course, but was rather constant in the last twenty five years. It is slightly decreasing or increasing in some years, depending on the conjuncture in Turkey and in the world as well.
All types of acts resulting in and from oppression are violations of human rights, which have been developed since decades. State oppression is a violation of norms and principles of human rights law; which has been adopted to protect citizens from unlawful acts of states for the purpose of protecting human dignity and human integrity. Any act aiming at persons’ physical or mental health by states or in the name of states not only violates law but also damages public order as well as the person her/himself. Violations and damages emerge the need for redresses; both mental/medical and legal. As oppression is related to law, health and the public, law and health professionals as the elements of this assessment should be intervened in the recovery process. But how? What is the relation between legal support and recovery/healing process?

Being healthy can be assumed as the continuation of a persons’ bio-psycho-social integrity in general. Sense of justice has an important place for psycho-social integrity. In every society sense of justice is one of the basic needs of the individual. However protecting unlawful acts by establishing impunities damages this sense and obstructs the individual to keep or to reach healthiness. While health and justice go hand in hand, lawyers, who struggle against impunity and rise claim of justice, have a crucial function for the protection of the bio-psycho-social integrity of a person, together with doctors.
Therapeutic environment and treatment are the basics for the public health and peace as well as obtaining individual health. Persons subjected to torture need to give a meaning to the trauma s/he had experienced and have a safe environment and feel confidence that s/he is living in a fair world and that s/he will never be subjected to this experience once again. These are necessary to rebuild the ties between society and the person.

How impunity works

We, in Turkey, have a quite acceptable legislation against torture. Theoretically, the state officials are accountable for their acts that violate law. The act of torture is defined as a crime. However perpetrators are still under the protection of impunity in practice. Main practical problems could be defined as below:
- Perpetrators are protected by law enforcement officials, including prosecutors, that conduct the investigation.

- Courts are “tolerant” towards the perpetrators.

- The statute-barred prosecution is one of the other ways leading to impunity.
- Counter accusations in order to intimidate the victims who raise complaints against perpetrators are also  a viable resort of torturers. The accusations are often based on “not obeying the instructions of security forces” and/or “helping or being a member of illegal organizations”.
- The reports that are prepared without or insufficient examination by the physicians are accepted as official reports and thus provide ground for impunity. The courts are used to fulfil the impunity by accepting these reports as credible evidences and  by not asking for additional examination by experts. Acquittals are often based on “lack of sufficient evidence”.
- Protection of the perpetrators by the state by providing lawyers fees and expenses of the courts in connection with the cases against the torturers has also to be mentioned since it is an encouragement for them to continue their acts of crime.

What to do

Two components - health and law - of violation that lead to trauma have utmost importance to be handled as a whole for recovery. Trauma results from holistic processes of destruction, which require an organized way of struggle.
While therapy and rehabilitation try to achieve a persons’ integrity, the effects of legal support can provide very important contributions to this process. Support, given to the victims in response to their claims for justice and achievements during processes, has serious therapeutic effect not only for the individual but also for the society in which hopelessness is spreading as a result of impunity.

What we lawyers do

Public health doctors emphasize three phases of intervention with the aims of prevention and treatment when they are confronted with health problems. These three phases of intervention can handily be adopted to a framework of legal support:
Primary intervention: There’s a sentence which public health professionals are inclined to repeat: “prevention is better than cure”. This point of view is of course also valid for law professionals. Prevention in general includes lobbying, making the legal defficiencies clearer, trying to strenghten the role of lawyers in the investigation and trial processes, supporting bar associations and/or lawyers associations to be more active on torture cases, giving seminars to law professionals and sometimes police.
Secondary intervention: These are indeed the first interventions when the actual problem emerges, which are shielding the person under arrest against torture. When lawyers are informed about a case, they demand custodial safeguards that are defined by national and international human rights law to protect the person. This is of course not enough. They reach or try to reach the person and record the situation. If the lawyers have any doubt that the person is under risk of torture they inform all the related officials, national and international human rights organizations, media, parlamentarians, ...
Terciery intervention: Seeking for justice against the actions that cause trauma; proving torture, identifying perpetrators, seeking punishment, reparation, redress can be mentioned in terciery intervention.

A group of lawyers has organized a group work, the Group for Prevention of Torture (GPT) , in order to intervene the torture cases before, during and after it occures in Izmir. The main goal of the group is prevention. However, since the goal of prevention has not entirely been achieved, documentation and investigation are the other objectives for the purpose of struggling with impunity. It is worth to tell the Group's way of intervention and cooperation with other professional and human rights groups while results of interventions have given therapeutic effect on victims, law and health professionals.   

GPT has acted on many levels in order to provide primary intervention. Main activities include the preparation of commentary reports to the drafts and/or amandments for laws; parliamentary petitions and data concerning torture cases through parliamentarians; provision and dissemination of documents to be used during the cases, preparation of sample cases to be discussed with lawyers, unexpected visits to police stations ...
- Lawyers may deal with traumatized persons as their private cases or bring the case to the GPT that is organized for the purpose to intervene in such situations. This can be done by supporting lawyers on request or giving full support when the case is adopted as the groups file.
- Torture survivors may receive threats because they applied for court proceedings. In this case the members of GPT try to protect the person from threats, from repetition of trauma. What the group could do is to change the place where a person lives, accompany her/him as much as possible, ask the court to monitor a person's telephone to identify incoming calls, to lodge new written complaints to the prosecutor.
- Lawyers try to be in a therapeutic approach to the traumatized person. The group believes that therapeutic communication itself is one of the ways of reparation.
For this purpose, lawyers, who volunteer to work with traumatized persons (tortured persons, women, children), should receive seminars. These seminars are focused on physical and psychological trauma, communication skills and interviewing methods in order to avoid retraumatization, besides developing skills on vocational matters. The number of trained lawyers for this purpose has already reached four hundred.
- Assigned lawyers from the list of volunteers interview with the person and record the story in every detail. They also take pictures of physical scars. Very similar to what physicians do. Lawyers, with the consent of the person, use the story as the main evidence of torture. Then try to strengthen the statement of the person by other evidences. Pictures, medical reports, testimonies, registration book and office charts of the police department, pictures of the officers, expert opinions, identification of officers, identification of vehicles used, ...
- The group make efforts for the person to be examined by a forensic doctor. If this is not possible or if the given report is false or insufficient lawyers contact the Medical Chamber and Human Rights Foundation for further examination. A report is prepared by one of the organizations. The Foundation also assumes treatment responsibility for the victim.
- If the tortured person is put into prison after the detention period, GPT shows the same effort to send the people to the hospital for a report. Prison authorities generally send the person to the hospital themselves, however the results have not been satisfactory because of many reasons such as neglegtance and delay. Physicians and lawyers have created a method in order to overcome this problem:
Lawyer interview with the person in the prison and ask her/him to indicate the places, shapes, dimensions of the scars on the anatomic which is brought by the lawyers. Where possible, lawyers ask the person to picture the physical scars. After collecting these materials the file is given to the Human Rights Foundation. Physicians of the Foundation give alternative and evaluative medical reports after examining and comparing all the documents they have.

This method was first used created during the time of the Manisa Case in which a group of youngsters were tried as being members of an illegal group. All of them were tortured by the police during their custody. The children were telling stories of severe treatments. However there was no official evidence of torture in their official medical reports. Retrospective reporting was the only solution and the anatomic diagram-method was implemented during this time. Lots of efforts have been spent for alternative reporting, mainly depending on these diagrams, and the reports evaluating the invalidity of official forensic reports and the outcome was successful. The court accepted the reports and the police officers got punished after a long process. * 
It was a victory. It was of course a reparation because the children could at least get the possibility to continue their lives and their education. One of the children became a lawyer, another is an actress, another is a journalist and one is an engineer now.

- Retrospective reporting for persons who died under torture is also experienced.
The case of Baki Erdoğan is the first one some lawyers worked on. He died while he was in detention. The official declaration concerning the death cause was “illness”. However the family had taken the pictures of his body before the burial and brought them to the lawyers. Upon the pictures that show scars on the body lawyers started to work with the physicians, human rights organizations, activists to find out the truth and report it. It took time, but  legal proceedings against police officers could be given a start and finally they got imprisoned and punished. The whole process, which was carried by the solidarity of different people, incuding lawyers and doctors was a great encouragement and empowered the family to stand against what has happened.
This effort and success motivated the lawyers and physicians to prepare guidelines for the documentation and investigation of torture cases. After working internationally for such kind of guidelines we now have the Istanbul Protocol - Handbook for Effective Investigation of Torture(IP).
Contributing to the preparation of the IP itself had an amazing effect on the people who struggle against impunity in terms of therapeutic effect.

- GPT does not only make complaints against the direct perpetrators but also against the ones, who collaborate, such as physicians who issue false or insufficient reports and therefore do not fulfill their duty, superiours of the officers or prosecutor for lacking sufficient control or insufficient investigation, which slows down the process, responsible persons of hospitals or state departments who withhold important documents and required information.
The lawyers dealing with torture cases try to raise an understanding of the fact that torture is not an individual act. Whenever possible all the actors of the process (doctors, prosecutors, judges, lawyers, ...) were reminded that any deficiency on fulfiling their duties and obligations results in support for torturers and motivates them to continue their acts.
- GPT also gives legal support to the doctors and activists who have been oppressed during the process. Vice versa, the doctors provide medical support for lawyers and activists.

How we proceed. What is our approach

The 'lawyer approach' seems different from doctors’. In one way that is true; lawyers collect evidences in order to prove client’s claims. Everything can be assumed as evidences during legal processes including the client her/himself. Nevertheless if the case is related with trauma, lawyers need to have common approaches with doctors; recovery - by claim of justice. In this respect the client is more than a mean of evidence, s/he is traumatized and needs special attention and approach.
Questions of what, how, where and who are important for both lawyers and physicians. Both groups need answers to these questions as detailed as possible. What the members of GPT do during the interviews with torture survivors is just listen and record the statement. A few questions are asked to receive some more details. Lawyers think that they are not the persons to judge if the statement of the torture survivor is illocigal/inconsistent or not. The only thing for the first step is to give the feeling that s/he is not alone, the group and the lawyers support her/him for legal processes and her/his story is required to claim for justice.
The group believes that access to justice has an important role for completeness of the healing process. However the lawyers can only act on behalf of the person, not in place of her/him. The person is probably not sure if s/he wants to give start for proceedings, because of fear or inconfidence or any other reasons. The person probably needs to be encouraged. Thus, it is the person who will make the decision for legal proceedings with the assistance of lawyers. This is one of the ethical obligations of lawyers.
The message of lawyers and physicians is adverse to the torturers message, conveying that the tortured person is not alone, that they believe in her/him, support her/him, that torturers are not omnipotent, that solidarity and struggle against torture are possible and that s/he and the situation are not hopeless, nor helpless. These initiatives can constitute the base and start of a therapeutic process.
Informed consent is another ethical issue starting from the first instance to the end. Lawyers inform about the forthcoming processes and receive her/his consent at the beginning. In this case we only inform the person on what goes on. Sometimes, depending on the specifics of the case the person is informed at every step and receive her/his consent for every new step.
Confidentiality is another ethical issue which the members of the Group always are very sensitive about.
Another assistance GPT uses to ask for is receiving consultations and advises of the treatment/rehabilitation team during the legal proceedings. This contributes to the success of the files but also to the protection of the victim against retraumatization.
The lawyers, as the supporters of the victim, try to be careful about secondary traumatisation. Mutual-interdisciplinary support between lawyers and health professionals is used to be established in order to avoid from secondary traumatization.

Cooperation among health professionals, law professionals and activists can bring achievements in order to provide this effect and recovery of individual traumata and traumata in the society, depending on oppression.
The atmosphere created with solidarity of doctors, lawyers, activists and the traumatized person is one of the crucial aspects. Solidarity is an amazing empowerment for everybody in the process. Professionals and activists preliminary come together with the aim of supporting traumatized persons in different ways, however it widens to supporting each other as people taking place in the process attract attention to the concept of oppression.
We, lawyers and doctors, are healers, but wounded healers. We could also heal ourselves while seeking justice for the others. It is solidarity which heals all of us.

(Bochum, October 15th 2005)

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* “… The Medical Examination and Report Commission of the Izmir Medical Chamber-undertook a study to establish the health status of the youths more clearly and to review the scientific and ethical validity of the “official forensic reports”. For this purpose, through their attorneys, the youths were asked to give an account as detailed as possible of what she or he had gone through while in detention and to relate conditions under which the official medical examinations had been carried out and the attitudes of the physicians.  In addition, the body diagrams were sent to the prison so that the youths could show the areas which are subject to torture and maltreatment and explain their complaints in detail.
The Report Commission investigated and evaluated the “official forensic reports” in the light of the documents and information obtained from the youths, and the hospital records of those who were referred to the hospital during their detainment period.
As a result of these investigations, “individual evaluation reports” were drawn up for each of the youths, which included the following: a) a brief detention history, b) complaints, c) the “official forensic reports”, d) a section about those consultations, tests and analyses that were to be carried out in order to verify the truth of the accounts of torture and complaints e) an interpretation section covering the consistency of complaints with case histories and deficiencies of the medical reports on the basis of  case histories and complaints.
And a “general evaluation report” that includes ethical and scientific assessment of all the "official forensic reports" was drawn up, taking into account all of the documents.
In this “general evaluation report”, it is shown that the “official forensic reports” were prepared without any basic components of the routine examinations, investigations for the forensic evaluation. None of the standards  to clarify the claims of torture were followed. It is shown in conclusion that these “official forensic reports” had no validity.

Six of the youths applied to the HRFT also for taking “alternative forensic reports”.
To make arrangements for the “alternative forensic reports”, the HRFT and the İMC cooperated to carry out a physical and psychological evaluation of each youth, to do necessary consultations, including psychiatric consultations and to carry out detailed tests and analyses. Subsequently, the account of torture as given by each, history of complaints, and the results of consultations and tests  were interpreted and evaluated in detail as a whole. All these details were put into one report in coherence individual “alternative forensic reports”. As a conclusion of all these evaluations, for each of the six youths, it was clear that "the youths had been tortured in detention".
Due to the time elapse, since the detention period till the application to the HRFT (it changed from 2 months to 26 months) the physical evidence of torture were few. But still, on three of the youths, some physical findings, especially related with musculosceletal system and urogenital system, were detected and found highly consistent with the infliction of torture.
In psychiatric consultations, it was found that each youth had some psychological symptoms due to the infliction of torture. "PTSD" was diagnosed in 3 of the youths and 2 others were diagnosed as "major depression" and 1 youth was diagnosed as "adjustment disorders with anxiety and depression". The rehabilitation and treatment of all of them were organized by the HRFT.
These “alternative forensic reports”, which proved and documented that the youth had been tortured, were presented to the court as evidence ...”

Baykal, Kapkın, Ayan, Pişmişoğlu, Lök (1999), “Alternative Medical Reports and the Responsibilities of the Physicians”, Presentation on 8th Symposium on Torture-IRCT in India

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