Assessment of the New Rules on the Duties and Powers of Neighbourhood Watchmen in Terms of Individual Rights and Freedoms

Murat Volkan Dülger* / Ruhsar Köse*

I. Introduction

In this paper we assess the provisions introduced on the duties and powers of watchmen with regard to their effect on individual rights and freedoms under the 1982 Constitution and international conventions, the difficulties that may arise in practice, and the necessity of the provisions.

As is well known, the Bill on Market and Neighbourhood Watchmen, which is currently on the agenda and the first 9 articles of which have been adopted by the Committee on Internal Affairs of the Grand National Assembly of Turkey, has brought many debates with it. According to the first 9 articles of the Bill, market and neighbourhood watchmen will have the duty and the power to stop persons and vehicles in order to prevent an existing or probable danger; to take the necessary measures, including an external pat-down by hand, in respect of the person or vehicle stopped; to ask for identification; to search persons; to apprehend suspects while an offence is being committed or after it has been committed while its traces are still apparent; to take measures preventing the suspects they have apprehended from harming themselves or others; to take the necessary protective measures so that the evidence of the offence is not lost or damaged; and to establish the identity and address details of any witnesses to the incident and report them to the general law enforcement units.

A further point giving rise to debate here is that market and neighbourhood watchmen have been given the power to use force and firearms.

In our opinion, the conferral on watchmen of the duties and powers that the legislature has already granted to the police under Art. 4/A of the Law on the Duties and Powers of the Police (PVSK) will give rise to a number of abuses and instances of unlawfulness in matters such as merit, training, the restriction of individual rights and freedoms and the abuse of rights.

II. The Effect of the Draft on Individual Rights and Freedoms

In a state governed by the rule of law, interference with the rights and freedoms of the individual is the exception, and any exceptions must without fail be laid down in conformity with the general conditions set out in Art. 13 of the 1982 Constitution and by provisions of statute. According to Art. 13 of the 1982 Constitution, “Fundamental rights and freedoms may be restricted only by law and only on the grounds specified in the relevant articles of the Constitution, without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution, to the requirements of the democratic order of society and of the secular Republic, or to the principle of proportionality”.

As can be seen, in order for a restriction to be imposed on a right or freedom, the article first requires the existence of a specific ground for restriction in the constitutional provision governing that right or freedom. In its absence, it is not possible for the fundamental right or freedom to be restricted by law either.

Likewise, Arts. 20 to 22 of the 1982 Constitution place “the right to respect for private life” under protection. This right covers the personality rights falling within the scope of the individual's private life and the inviolability of his or her person, home and communications.

According to Art. 20 of the Constitution:

“Everyone has the right to demand respect for his or her private and family life. The privacy of private and family life shall not be violated.

Unless there is a decision duly given by a judge on one or more of the grounds of national security, public order, the prevention of crime, the protection of public health and public morals, or the protection of the rights and freedoms of others, and unless, in cases where delay is prejudicial, there is a written order of an authority empowered by law, again on these grounds, no one's person, private papers or belongings may be searched, nor may they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his or her decision within forty-eight hours of the seizure; otherwise, the seizure shall automatically be lifted”.

At the same time, the first paragraph of Art. 8 of the European Convention on Human Rights (ECHR) contains the following provision: “Everyone has the right to respect for his private and family life, his home and his correspondence". The second paragraph of Art. 8, for its part, provides: "Interference by a public authority with the exercise of these rights may take place in a democratic society only to the extent necessary for national security, public safety, the economic well-being of the country and the protection of order, and on condition that the law permits it.”

Private life, and hence the right to the privacy and inviolability of private life, protected by the 1982 Constitution and the ECHR, affords protection not only against unlawful violations by public bodies but also against violations by individuals.

We must point out that we find all these measures, which the legislature has also safeguarded through the Constitution, being used not as a means but as an end, and that we encounter unlawful apprehensions, body searches, identity checks, uses of force, placements in police custody and pre-trial detentions.

Unfortunately, the right to a fair trial is not put into operation in the manner laid down in legal texts. In practice we frequently encounter the abuse of duties and powers and instances of procedural and substantive unlawfulness even among members of the law enforcement forces who have received a certain professional and legal training, relatively speaking (though still an insufficient one), and who possess (or ought to possess) merit. In our country, where arbitrary practices occur when law enforcement officers who have completed their professional training exercise their powers to check identity (the GBT procedure), to carry out body searches and even to use firearms, where the power to use force against persons they regard as suspect is exercised to excess, and where unlawfulness reaching the level of battery/torture occurs, the question whether watchmen, who will complete their professional training at a level that is limited by comparison with the law enforcement forces, will be able to perform their duties and exercise their powers properly when faced with a suspect person or incident is undoubtedly of great importance from the standpoint of “individual rights and freedoms”.

According to the Draft, the mere existence of a reasonable ground suffices for watchmen to be able to exercise the power to stop. Under Art. 4/A(2) of the PVSK, by contrast, what is required of law enforcement is a reasonable ground “based on the police officer's experience and on the impression he or she has gained from the situation at hand, in order for the power to stop to be exercised”. In other words, two limitations have been placed on the reasonable ground: experience and the impression of the situation at hand. It is not right that no such limitation has been laid down for watchmen. For the power to stop that is to be conferred on a unit which is an auxiliary to law enforcement must a fortiori be made subject to “at least” the same conditions. Indeed, an organisation which, compared with the general law enforcement organisation, does not yet have an institutional memory should be allowed to exercise the powers granted to the existing law enforcement only within a narrower scope¹.

The written statement issued by the General Directorate of Security says that, pursuant to the “Regulation Setting Out the Matters to be Observed by Market and Neighbourhood Watchmen in Connection with their Duties”, “Those who are to serve as market and neighbourhood watchmen are subjected to high-level training for a period of 3 months by the Presidency of the Police Academy of the General Directorate of Security, and those who complete this training successfully are sent to the provinces in which they will serve. In the provinces to which they are sent, they also undergo practical training for a period of 2 months before taking up their duties. In addition, after taking up their duties they continue to be subjected to in-service training at regular intervals”.

When the comprehensive training given to police officers by the Police Academy is compared with the short training of some 3 months to be given to watchmen, new instances will, in our opinion, be added to the unlawfulness that already exists in practice with regard to the restriction of individual rights and freedoms, and unlawful, arbitrary interferences with the fundamental rights and freedoms safeguarded by the Constitution and by international conventions will be encountered frequently.

III. Our Assessment

Although the Bill has so far only been adopted in Committee and has not been published in the Official Gazette, we see that in practice arbitrariness and excesses occur in the exercise by watchmen of their duties and powers.

The most recent violent incident involving watchmen and the “use of firearms” to come to public attention occurred in Malatya on 3 February 2020, when one of the watchmen intervening against a suspicious individual was wounded by a bullet fired from his colleague's pistol.

Likewise, in footage that was also shared on social media in July of last year, three watchmen in İzmir are seen to overpower a young man who refused to show his identity card by handcuffing him behind his back, and, when a person at the scene says “Shall we call the police?”, one of the watchmen is seen to reply “No need, we are the police, brother; what's the matter, why are you calling the police”.

In my opinion, these and similar practices will give rise to an armed structure which, owing to a lack of training and merit, regards itself as above the law and the statutes and which, although its members are employed as an auxiliary force assisting the law enforcement forces, will serve virtually as a parallel law enforcement force; and this will lead to the restriction in their entirety of the fundamental rights and freedoms safeguarded by the Constitution, to the proliferation of the arbitrary and excessive use of force and to a departure from the principle of the rule of law.

At this point, the necessity of conferring on market and neighbourhood watchmen the powers to stop, to check identity, to carry out body searches and to use firearms that are already granted to the security forces must be debated; in particular, the ways and methods to which watchmen, whom it is sought to employ as an instrument for controlling society, will resort on the basis of reasonable suspicion or in order to prevent an existing or possible danger to society must be scrupulously examined and subjected to scrutiny by the relevant authorities and bodies. Otherwise the State, which holds the power of investigation and prosecution for the purpose of punishing those who commit offences, will move away from the principle of the “rule of law” laid down in Art. 2 of the 1982 Constitution and will turn into a veritable “police state”. In exercising its power of investigation and prosecution, the State must act in conformity with the rules of law and must hold itself bound by those rules as well.

It must not be lost sight of that, at the stages at which a person under suspicion or accusation of an offence is stopped, asked for identification and searched within the scope of the duties and powers of market and neighbourhood watchmen, that person will benefit from the guarantee of the “presumption of innocence/non-guilt” pursuant to Art. 6(2) of the ECHR and Art. 38(4) of the 1982 Constitution, will be deemed innocent until his or her guilt has been established by a final judgment of conviction, and will, during the criminal investigation and prosecution, enjoy all the rights arising from the principle of the “right to a fair/equitable trial”, which is also enshrined in Art. 36(1) of the 1982 Constitution.

It is inevitable that watchmen, who have the character of an armed auxiliary to law enforcement, will interfere with certain fundamental rights and freedoms by exercising public authority. Indeed, the powers contained in the Bill demonstrate this interference. Accordingly, the provisions conferring powers that entail interference with fundamental rights and freedoms need to contain more concrete, detailed and purpose-oriented rules².

In conclusion, the Bill on Market and Neighbourhood Watchmen, which we have assessed predominantly in the light of the 1982 Constitution and the European Convention on Human Rights with regard to its effect on the fundamental rights and freedoms of individuals and the restrictions it introduces, will, in respect of the powers granted to watchmen, cause the problems currently experienced in practice to grow and, through arbitrary and excessive practices, lead to a departure from the “principle of the rule of law”. Moreover, in our opinion there is no necessity for conferring on market and neighbourhood watchmen duties and powers similar to those granted to the security forces by Art. 4/A of the PVSK. On the contrary, work and supervision should be undertaken with a view to remedying the problems and the unlawfulness experienced in the exercise of this power by the security forces, and an attempt should in this way be made to prevent the breaches of law and of statute that occur today.