Turkey: Failure to act on the European Court of Human Rights judgments puts freedom of expression at risk

ARTICLE 19 and the Turkey Human Rights Litigation Support Project (TLSP) have warned that the rights to freedom of expression and assembly continue to be at risk in Turkey. Their warning comes ahead of the Council of Europe’s Committee of Ministers’ review of Turkey’s implementation of judgments by the European Court of Human Rights, which will take place between 3-5 March 2020.

David Diaz-Jogeix, Senior Director of Programmes at ARTICLE 19 said:

“The Turkish authorities continue to use anti-terror laws to harass journalists, human rights defenders, opposition politicians, academics, lawyers and others. It is shocking that this still happens, despite several European Court judgments that specifically addressed how these laws were being used to violate freedom of expression and stifle dissent. In fact, since these rulings, the number of cases has reached an alarming level, as has the severity of sanctions imposed on defendants.”

Ayse Bingol Demir, co-director of TLSP, said:

“Remedies for human rights violations are still not easily accessible in Turkey and the Constitutional Court’s effectiveness is hindered by slow and inconsistent decision-making. Moreover, in some key cases where the Constitutional Court did make decisions, their implementation has been problematic.

 “Freedom of expression in Turkey will remain under threat until there is a genuine political will to undertake comprehensive legal reform, effectively guarantee the re-establishment of an independent judiciary and ensure implementation of the Constitutional Court and European Court rulings in the country.”

The Committee of Ministers of the Council of Europe is responsible for supervising the implementation of judgments by the European Court of Human Rights. ARTICLE 19 and TLSP have submitted two communications to the Committee on Turkey’s lack of implementation of the Işıkırık group and the Öner and Türk group of judgments. The European Court noted in these judgments that the Turkish authorities were using certain articles of the Prevention of Terrorism Act (the Law no. 3713) and the Criminal Code to stifle freedom of expression and peaceful assembly. The Turkish authorities have requested from the Committee of Ministers that the cases be closed, claiming that the judgments have been fully implemented. ARTICLE 19 and TLSP urge the Committee of Ministers to keep the cases open and continue supervising their implementation because of widespread violations of the right to freedom of expression and assembly that continue to take place in Turkey contrary to what the Turkish authorities’ have claimed.

Ongoing abuse of anti-terror laws against journalists and human rights defenders

The submissions demonstrate that the Turkish authorities’ violations of the right to free expression and assembly have continued. The large numbers of prosecutions show the widespread use of the anti-terror laws to harass those critical of the Government, including journalists, human rights defenders and others. This is deterring others from voicing their thoughts freely.

In a number of cases since the Öner and Türk ruling of March 2015, the Turkish courts are still systematically failing to examine “the proportionality of the interference and the balancing of rights taking into account freedom of expression”, as noted by the Court in Öner and Türk.

For example, the large number of prosecutions suggests that Articles 6 and 7(2) of the Prevention of Terrorism Act are used to systematically harass journalists and others on the basis of their expression. In fact, between 2013 and 2018, almost 100,000 cases have been opened under the Prevention of Terrorism Act.

The number of prosecutions has starkly increased between 2013-2018, despite the Turkish Government’s claims in its action plan submitted to the Committee of Ministers that the number of such cases had decreased during this time. Since 2013, when there were more than 10,000 cases, the number of prosecutions has increased each year, apart from 2015 and 2018.

Turkey’s 2020 Action Plans fail to address ongoing human rights violations

In its January 2020 Action Plans submitted to the Committee of Ministers ahead of the meetings of 3-5 March 2020, Turkey claims that it has implemented the judgments and points to the Judicial Reform Strategy and the training of judges to support their claim. However, in ARTICLE 19 and TLSP’s view, Turkey’s Judicial Review Strategy does not introduce any substantial reforms and fails to address the core issues at stake regarding the independence of the judiciary.  Furthermore, in light of the worsening practice of the judiciary, any training that has taken place has manifestly failed to have an impact on the ground.

Similarly, the Turkish Government’s Action Plans of 2020 fail to specify adequate general measures to implement the European Court’s judgments in the Işıkırık group and Öner and Türk group of cases. There are no planned significant legislative changes in the 2020 action plans for both groups, and the steps that they have claimed to have taken, including some amendments to the laws, are inadequate.

In its 2020 Action Plan on the Öner and Türk cases, Turkey claims that the amendment made in the Prevention of Terrorism Act were steps taken to implement the judgments. However, ARTICLE 19 and TLSP believe that the amendments have failed to prevent the widespread misuse of the Prevention of Terrorism Act. Given the large numbers of journalists, human rights defenders, academics, politicians, lawyers and others prosecuted on the basis of this law and its severe effect on the rights and freedoms in general, we believe the problematic provisions addressed in the judgments should be repealed entirely.

Similarly, despite the European Court’s findings in the Işıkırık group of cases that Article 220(6) of the Criminal Code is too broad, prescribes disproportionate sanctions, criminalises lawful conduct, and has a chilling effect on the exercise of the right to freedom of expression and assembly, the Turkish authorities have continued to apply this law against individuals on the basis of their expression.

Recommendations

As set out in our submissions, in its debate on these vital issues in Turkey we urge the Committee of Ministers to call on Turkey to:

• Ensure the implementation of the Constitutional Court and the European Court of Human Rights rulings, including by refraining from intemperate criticism of court decisions that undermine the rule of law.

•   Repeal Article 220(6) and (7) of the Criminal Code in line with the Venice Commission’s recommendations.

• Amend Article 314 of the Criminal Code to ensure stricter and clearer criteria for membership of a terrorist organisation and ensure strict application of the criteria within the courts.

• Abolish Article 7(2) and Article 6 (2) and (4) of the Prevention of Terrorism Act.

• Amend the definition of terrorism under Article 1 of the Prevention of Terrorism Act to bring it in line with international standards on human rights and counter-terrorism.

• Amend Article 2 of the Prevention of Terrorism Act to ensure that those who are not members of an illegal terrorist organisation and have not committed a serious crime cannot be convicted as such.

• Take concrete steps to restore the independence of the judiciary, including by reforming the method of appointment of the Council of Judges and Prosecutors.

• Re-establish the independence of the judiciary, through implementing the recommendations of the Venice Commission regarding the 2017 amendments to the Turkish Constitution.

 Background to the cases

These cases form part of a pattern of human rights violations which has increased in spread and intensity following the declaration of the state of emergency after the July 2016 coup attempt.

The leading judgment in the Işıkırık group of cases,  Işıkırık v Turkey, demonstrates how Turkey violated the right to freedom of assembly by convicting Mr Murat Işıkırık of membership of an illegal organisation, solely based on his participation in a peaceful funeral procession for members of the PKK (Kurdistan Workers’ Party) in July 2009. The European Court found that the sanction was disproportionate and that there was no distinction under the Criminal Code between a peaceful demonstrator and a member of an armed terrorist organisation.

The Öner and Türk group covers 32 cases of people who were convicted under the Criminal Code or the Prevention of Terrorism Act for inciting violence or hatred. The European Court found that this was in violation of the applicants’ right to freedom of expression as they did not incite violence or hatred.

The Committee of Ministers will meet between 3-5 March 2020 to review implementation of the judgments in these cases and decide whether to keep the cases as pending implementation subject to the Committee’s supervision or close them.

For more information, contact:

Turkey Human Rights Litigation Support Project team – info@turkeylitigationsupport.com.