Constitutional Court finds violations in the Academics for Peace case (Application no 2018/17635)

On 26 July 2019 the Constitutional Court of Turkey delivered a judgment concerning freedom of expression of ten academics who were convicted under anti-terrorism law for signing a peace petition, a group publicly known as “Academics for Peace”. In this leading case, the judges of the Grand Chamber were evenly divided: whilst eight judges were against finding a violation, the other eight judges, including the President of the Court whose vote had a special weight pursuant to Art.57 of the Rule of the Court, decided that the applicants’ right to freedom of expression was violated.

 Background

On 11 January 2016, a petition called “We will not be a party of this crime” was made public with initial signatures from 1128 academics and researchers from Turkey and abroad, criticising the Turkish government for its implementation of recent curfews and anti-terrorism operations in Kurdish districts of Turkey. In the petition, the use of curfews and employment of heavy weaponry by security forces were criticised as “deliberate and planned massacre” perpetrated by the state violating human rights and other obligations under international law. The authorities were urged to immediately end the violence; to punish those responsible for human rights violations, to provide redress for damages, to allow access of independent observers to the region and lastly, to create conditions for lasting peace in the region.

 After its publication, the President severely criticised the signatories, accusing them of being “supporters of terrorism”, “dark forces” or “fake academics” and a smear campaign against these academics was disseminated further in pro-government media. Afterwards, public prosecutors across the country filed indictments against the signatories charging them mainly with the criminal offence of disseminating propaganda in support of the PKK pursuant to Article 7(2) of the Anti-Terror Law (Law no. 3713).  Some of the academics were arrested and detained during these proceedings. Administrative and disciplinary sanctions were imposed against them by their Universities and a number of them were dismissed by executive decrees during the state of emergency with ensuing limitations on their passports and employment in public sector.

Criminal Proceedings

In their decisions, the ‘heavy penal courts’ held that the applicants had justified and legitimised the actions of a terrorist organisation by presenting the state’s military operations as “massacres” causing the death of civilians in the petition, which amounted to propaganda in support of PKK. Taking into account ongoing conflict and security risk in the region during that period concerned, they convicted the applicants under Article 7(2) of the Anti-Terror Law. The applicants’ requests for appeal were rejected by the higher courts.

As to the execution, the prison sentences were deferred for all convicted applicants, but one, Füsun Üstel, who went into prison to serve her criminal sentence of 15 months following the appeal court’s decision upholding her conviction. For those whose sentences were deferred are subjected to a probationary period during which if any other offence is committed, full sentences would be served for both offences.

Complaining that their convictions constituted a violation of their rights to freedom of expression, fair trial and prohibition on restricting rights for illegitimate purposes, as guaranteed under Articles 10, 6 and 18 of the European Convention of Human Rights (ECHR), the applicants submitted an individual application to the Constitutional Court (CC).

The Judgment of the CC

In its judgment, citing its recent judgment in Ayşe Çelik case, the majority of the Court stressed once again that Article 7(2) of the Anti-Terror Law did not criminalise any expression associated with terrorism but only those justifying, praising or inciting to resort to methods constituting coercion or violence used by a terrorist organization (para. 80).

In the decision it was asserted that for propaganda for a terrorist organization to be criminalised, two conditions set out under Article 5 of the Council of Europe Convention on the Prevention of Terrorism must be met, namely, the special intent for disseminating propaganda and a danger to public order that a terrorist offence of a similar kind would in fact be committed. As to the latter condition, the CC stressed that the prosecuting authorities had to show that danger of a certain level had arisen taking into account the specific circumstances of each case (para.84).  Otherwise, criminalizing indirect incitement to terrorism (through criminalizing apology, legitimising or praising a terrorist organization or its conducts) may potentially pressurize freedoms, particularly political expression.  

Moreover, the majority of the Court challenged the assumptions made by prosecuting authorities and the instance courts that the impugned petition was organised on the basis of a call made by the PKK, having sought support for its aims in the region, due to the lack of evidence (para 89 and 95). Furthermore, the majority  rejected any negative inferences being drawn against the applicants from the fact that the petition only called on the state authorities to end conflict and violence but not the PKK (para.96). In this regard the majority noted that one-sided or biased information or opinion could not be a justification for an interference with the freedom of expression, which would otherwise risk limiting the public debate to which civil society contributes through its appeals to public authorities (para.97).  

To assess the perceived danger and necessity of an interference, the CC called for a complete analysis of all circumstances of the case taking into account content, context, identity of the person who made the impugned expression, timing and impact of the statement as a whole (para.86). On this basis, the majority disagreed with the lower courts’ analysis and found that content of the petition did not praise, justifies or incite the violent methods or terrorism but rather called for the end of conflict and violence and respect for human rights. In this connection it reiterated that even those expressions that are deemed “to offend, shock or disturb the state or any sector of the population” are protected under the right to freedom of expression (European Court of Human Rights (ECtHR), Handyside v. the United Kingdom, No: 5493/72, 7/12/1976 para.49).  

Paying special attention to the identities of the applicants as academics, who would enjoy broader freedoms to express their opinions, the judgment confirmed that strict protection is required for academic expressions and also those related to matters of public interest as seen in the instant case. It reiterated that the acts or negligence of public authorities were subjected to public scrutiny in a democratic society and that authorities have to tolerate criticism.  In the proportionality assessment, noting the severe chilling effect of resorting to criminal law, even if a criminal sentence is suspended in the end, may result in limiting public debate and silencing different voices in a democratic society. In conclusion, observing that the applicant’s statement had not praised or glorified violence nor had it aimed to instill hatred, the majority decided that the applicants’ conviction under Article 7(2) of the Anti-Terror Law did not correspond to “a pressing social need” and thus, their right to freedom of expression under Article 26 of the Turkish Constitution was violated.

 A Brief Assessment of the Judgment

This is an important judgment underlining the fundamental principles of freedom of expression particularly in relation to political expression in the context of fight against terrorism. The judgment calls for a stricter interpretation and application of the offence of disseminating propaganda in support of a terrorist organisation under Article 7(2) of the Anti-Terror Law, given the relevant international standards and case-law of the ECtHR. It challenges subjective assumptions made by prosecuting authorities or courts, exceeding the legal limits of the impugned provision and requests that a link to be established between the elements of propaganda and the impugned expression and any proof to be shown for the perceived risk of terrorism to justify the criminalisation of propaganda under Art. 7/(2) of Anti-Terror Law. Another positive aspect of the decision is that the judgment stressed the importance of academic freedoms, entailing freedom of opinion and expression by the members of academia not only on issues of their expertise but also on any matters of public interest, calling closer scrutiny for any interference by authorities (para.111).

On the other hand, some elements in the judgment raises familiar concerns. For instance, the CC seems to have felt obliged to state that “the Constitutional Court is not in any ways in agreement with the content [of the petition]” and unnecessarily remarked on the tone used in the petition by referring it “biased and offensive containing exaggerated comments” and being “aggressive towards security forces” (para.124). Despite the applicants’ allegation that the real aim of their prosecution was to silence and punish them as part of a larger campaign targeting dissents, the Court conveniently did not find it necessary to examine this claim.  

The reasonings of dissenting judges presented at the annex of the judgment are noteworthy to show the variation of interpretations on the nature of the crime of propaganda for terrorism and on the limits of freedom of expression in a democratic society.. As presented in the the first published dissenting opinion (signed by judges Serdar Özgüldür, Burhan Üstün, Muammer Topal and Rıdvan Güleç) the dissenting  four judges seem to be in complete disagreement with the reasoning and conclusion adopted by the court as they asserted that propaganda against “integrity and unity of the nation and country” and any expression that contradicts with “the principle of loyalty to the state” could not be protected under freedom of expression. This defies established principles and the case-law of the ECtHR on freedom expression. It reflects the findings of the international monitoring bodies, such as the Commissioner for Human Rights,  raising concerns about tendencies in the Turkish judiciary to see their primary role to protect “the state” over protecting the rights of individuals.

Similarly, the second dissenting opinion (signed by judges Kadir Özkaya, Recai Akyel, Yıldız Seferinoğlu and Selahaddin Menteş) emphasises on the “duties and responsibilities” of individuals, including academics, in exercising their freedom of expression, and criticises the declaration for its accusative statements against the state authorities in the time when the conflict had been at its peak. These judges noted that the offence of disseminating propaganda in the Turkish law is not a crime of “harm” but a crime of “danger” and that state authorities have a “broad margin of appreciation” in criminalising propaganda for terrorism, particularly if the impugned statement has any links with violence. By relying on an abstract risk and reversing the burden of proof against the freedoms, they asserted that the statements in the petition, as negatively portraying the state authorities and its operations against terrorism, would have a potential to incite members of PKK or its sympathisers to resort to violence or to encourage them to commit terrorist crimes at time concerned (paras.35, 36 and 39).

Despite its shortcomings, this ruling, as it stands, has set precedent for more than 700 academics whose cases have been pending before the domestic courts and for many others prosecuted under Article 7(2) of Anti-Terror Law, a provision which has been extensively used to restrict legitimate criticism and peaceful expressions in Turkey. The divided opinions in the CC , however, indicates that fluxes in the case-law may continue and the protection provided for expressions critical of the authorities may not reach to the level required by the Art. 10 of the ECHR in every case. Nevertheless, it represents an opportunity for the CC to consolidate the approach taken in this judgment and send clearer messages to the implementing authorities, hopefully with less divided majority in its future rulings.

 The Turkey Litigation Support Project

The Turkey Litigation Support Project (TLSP), jointly with Amnesty International, ARTICLE 19 and PEN International, submitted a third party intervention before the ECtHR on three applications concerning the cancellation of passports of academics who signed the same petition. The TLSP also provided expert opinions examining international law standards relevant to the criminalisation and prosecution of free expression which have been submitted before the Heavy Penal Courts trying a group of Academics for Peace. It further participated in a number of actions, including urgent appeal calls to the UN Special Procedures, to raise awareness of the situation of academics in Turkey. The TLSP will continue monitoring the developments in these cases and implementation of the CC judgment against the worrying criticism made by the governmental authorities of this important ruling.     

Kilic v. Turkey: ECtHR intervention lodged in case of the director of Amnesty International Turkey

The Turkey Litigation Support Project, Human Rights Watch and the International Commission of Jurists intervened in the case of Taner Kilic v. Turkey before the European Court of Human Rights (the ECtHR).

The case concerns the arrest and detention of the applicant, a respected human rights lawyer and former Director of Amnesty International Turkey. It epitomises some of the most fundamental human rights challenges in Turkey today, involving widely documented restrictions on freedom of expression, association and assembly of human rights defenders (HRDs), a rapidly closing civil society space under the emergency regime, and the broadening reach of anti-terrorism legislation applied against HRDs with wide-reaching implications for public debate, participation in public affairs and the protection of human rights.

Against this background, the intervention outlines the factual context of the situation facing HRDs in Turkey. It highlights international and comparative standards governing obligations towards them, including the limits prescribed by Article 18 of the European Convention on Human Rights. It further provides comments on key principles necessary for a rule of law approach to the application of the criminal law, against the legal and practical pattern of excessive resort to criminal law against HRDs in Turkey. Based on all these grounds, the intervention concludes that “the criminalisation of HRDs requires particularly rigorous oversight by the Court, given its impact on an array of rights, including in this case Articles 5, 10, 11 and 18, on the authority of criminal law and on the ability to defend human rights in Turkey.”

The intervention can be downloaded in English here and in Turkish here.

Commentary on the May 2019 judgments adopted by the Turkish Constitutional Court on the detention of journalists and a civil society leader

May 2019 was a productive month for the Turkish Constitutional Court (TCC) which delivered long-awaited judgments on eleven applications, concerning the detention and prosecution of ten journalists and a civil society leader after the attempted coup d’état of 15 July 2016. However, the outcome of the cases caused deep disappointment with the TCC only finding violations of the right to liberty and security and the right to freedom of expression in four cases concerning journalists Ahmet Kadri Gürsel  (No. 2016/50978), Murat Aksoy (No. 2016/30112), Ali Bulaç (No: 2017/6592) and Ilker Deniz Yücel (No. 2017/16589). In the remaining applications of Ahmet Hüsrev Altan  (No: 2016/23668), Ayşe Nazlı Ilıcak (No: 2016/24616), Mehmet Murat Sabuncu  (No: 2016/50969), Akın Atalay (B. No:2016/50970), Önder Çelik and Others (No:2016/50971), Ahmet Şık  (2017/5375) and finally Mehmet Osman Kavala (No. 2018/1073) the court found no violation of any rights. This note presents a summary of the background to these cases and then analyses the TCC’s judgements.

Background

In the aftermath of the attempted coup d’état of 15 July 2016, journalists and media professionals allegedly affiliated with the Gulenists - classified as a terrorist organization under the name of Fethullahist Terrorist Organization (FETO) and considered to be behind the attempted coup - were detained as part of an  investigation of “FETO’s media network.” Critical journalists from various newspapers, such as Ahmet Altan of Taraf newspaper, Nazli Ilicak of Özgür Düşünce newspaper and Ali Bulaç from Zaman newspaper, were accused of attempting to overthrow the Government by force, abrogating constitutional order or being a member of or supporting FETO.

Similarly, executives, journalists and employees of Cumhuriyet newspaper, one of the oldest independent daily newspapers in Turkey, were detained in proceedings known as the “Cumhuriyet Trial”. Accusations included support of terrorist groups, including FETO and PKK, manipulating public opinion with news and publications and forming a negative public opinion against the Government.

Prosecutions against dissenters continued extensively during and after the state of emergency, which was in force between 21 July 2016 and 19 July 2018, targeting many more journalists, civil society activists and individuals perceived to have raised critical voices against the state’s official politics or the Government. Deniz Yucel, a journalist for the German newspaper Die Welt, was detained for more than one year because of political commentaries, news and interviews which were deemed to have incited hatred or hostility and spread propaganda in support of terrorist organisations. Similarly, Osman Kavala, a philanthropist, civil society leader and activist was placed under detention in proceedings known as the “Gezi Trial” in November 2017, some four years after the Gezi protests, which he was accused of having organised and financed in 2013. 

These eleven cases, which derive from similar underlying causes, namely use of criminal and anti-terrorism laws against those perceived to have acted contrary to official state interest, raise important issues of the arbitrary criminalisation and detention of dissenters and suppression of freedom of expression and other relevant rights in Turkey. Moreover, these cases raise questions about the effectiveness of response by human rights courts, including the TCC and ECtHR to protect individuals, especially those acting as public watch dogs, from arbitrary and illegitimate criminal prosecutions, and to address the problematic aspects of such practices in a timely manner given the grave chilling effect caused by these prosecutions.

Legal Developments Prior to the Judgments

Before analysing the recent judgments of the TCC themselves, it is relevant to recall the legal developments that preceded them.  On 22 May 2017, the ECtHR decided to give priority to applications where “the applicant is deprived of liberty as a direct consequence of the alleged violation of his or her Convention rights”. Subsequently, the cases lodged by journalists who had been in detention were communicated to the Respondent Government within six-months after being lodged. The ECtHR communicated the cases of Osman Kavala with the Government in August 2018 and the Turkey Human Rights Litigation Support Project (TLSP), together with Pen International, submitted a third-party intervention in this case.

Whilst these proceedings were pending before the ECtHR, the TCC broke its silence and delivered two leading judgments concerning detention of journalists in the cases of Mehmet Hasan Altan and Şahin Alpay finding that their detentions were unlawful, absent convincing grounds to believe that they had committed the crimes they were charged with. The evidence forming the basis for their detention was mainly their journalistic expressions and writings on topical issues, remaining within the limits of freedom of expression.  Even in the context of public emergency, the applicants’ detention was not regarded as a necessary or proportionate interference with their right to liberty and freedom of expression which would be confirmed by the ruling of the ECtHR in March 2018. However, even after the TCC’s judgments, the applicants were not immediately released due to the lower courts’ offered resistance to the ruling of the TCC.

 Following these developments at the domestic level, the ECtHR ruled on these cases, and confirmed violations of Article 5(1)(c) and 10 of the Convention, and reminded the lower courts of the binding nature of the TCC’s judgements and the potential impact of non-compliance with its judgments. The ECtHR noted that the applicants’ continued pre-trial detention, even after the TCC’s judgments, might raise serious doubts as to the effectiveness of the remedy of an individual application to the TCC in cases concerning pre-trial detention. In both cases, the ECtHR also stressed the importance of the speedy review of lawfulness of continued detention by the TCC. It noted that fourteen or sixteen months would not be considered as “speedy” in an ordinary context, but accepted that special circumstances prevailed following the attempted coup causing considerable increase of applications pending before the TCC.

After the adoption of these leading judgments, other pending applications lodged by detained journalists raising similar complaints were expected to be speedily resolved by the TCC or ECtHR. However, in practice applicants had to wait for more than a year to obtain a legal determination by the TCC of cases raising blatant freedom of expression violations. Some were even returned to prison to serve their sentences after their convictions were upheld by higher courts. In May 2019, around three years after the arrest and initial detention of the applicants, the TCC finally delivered its rulings on the above-mentioned 10 journalists and the civil society leader cases. However, the inconsistencies with the outcome of the cases and reasoning of the judgements, resulted in more controversy than legal resolution on the issues the cases raised. 

Analysis of the May Judgments

Among these eleven cases, the TCC found only in Ahmet Kadri Gürsel, Murat Aksoy, Ali Bulaç and Ilker Deniz Yücel that the applicants’ detentions were unlawful amounting to an interference which could not be regarded as necessary in a democratic society. In those cases, the TCC found a violation of the right to liberty and freedom of expression. However, in the other seven cases, although raising similar issues, namely continued detention of applicants as journalists or a civil society leader based on peaceful expressions or activities, the TCC did not find any violations.   All eleven cases together show disagreement among the judges of TCC and fluctuation in the TCC’s performance in upholding relevant human rights standards, particularly with regard the right to liberty and freedom of expression in line with the European Convention on Human Rights (ECHR). Both the outcome of the cases as well as the variations in the number of dissenting opinions attached to those judgments (e.g. six dissenting opinions in Mehmet Murat Sabuncu, five in Ahmet Altan, one in Ahmet Şık) illustrate this fluctuation. The divergence from one case to another exacerbates the legal uncertainty as to the expectation that the TCC would apply human rights standards equal to those established by the ECtHR.

 All the judgments reveal criminal prosecutions concerning serious charges related to state security were brought against journalists and media professionals on the basis of their journalistic activities and expressions critical of the authorities’ conduct. Articles, news headings, tweets and speeches were used against them as evidence of supporting proscribed groups or terrorism or attempting to overthrow the Government.  For example, in the case of Ahmet Şık, the applicant was accused of supporting and making propaganda by way of his writings and tweets for three different terrorist groups; FETO, PKK and DHKP-C, whose aims and methods are fundamentally distinctive from each other.

When finding violations in the Ahmet Kadri Gürsel, Murat Aksoy, Ali Bulaç and Ilker Deniz Yücel cases, the TCC challenged the erroneous interpretations of the prosecuting authorities accusing those journalists of aiding or supporting terrorist organisations. It asserted that the impugned expressions and meanings given to them should have satisfied an objective observer that the accusations had some factual basis. However, the TCC failed to uphold the same principles in the Ahmet Hüsrev Altan, Ayşe Nazlı Ilıcak, Mehmet Murat Sabuncu, Akın Atalay, Önder Çelik and Others, Ahmet Şık and Mehmet Osman Kavala cases, where overarching interpretations and applications had brought serious charges with no objective grounds or factual basis. The fact that selected phrases were taken out of context from  the entirety of the text or speeches or metaphors used in the applicants’ analysis of political issues were interpreted as evidence of criminal conduct by prosecuting authorities, criminal courts and later by the TCC, were criticised by several dissenting judges of the court.

In the cases of Ali Bulaç, Kadir Gürsel, Murat Aksoy and Deniz Yücel, the content of journalistic writings and expressions, deemed by the TCC to have not amounted to a call for violence,  terrorism, or incitement to hatred, were taken as a decisive factor to rule out the existence of “strong indication”, equivalent to “reasonable suspicion” of having committed a crime, as required by Article 5/1(c) of the ECHR. However, in other journalists’ cases, the context, aim and entirety of impugned expressions were not taken into account as a whole; instead selected phrases were accepted as evidence for alleged charges, despite the absence of a call for violence or incitement or support to terrorism by the TCC. No evidence proving the links between the journalists and proscribed organisations and their intention to contribute to the pursuit of illegal conducts of those organisations, as is required for individual criminal liability, had been referred to.

Moreover, despite the legal requirement of a strict justification of the detention of journalists both under Articles 5 and 10 of the ECHR, the TCC failed to carry out a proper and careful assessment of proportionality in those six cases against journalists and media professionals, namely Ahmet Hüsrev Altan, Ayşe Nazlı Ilıcak, Mehmet Murat Sabuncu, Akın Atalay, Önder Çelik and Others and Ahmet Şık. In accepting that detention of applicants had not been arbitrary, it limits its assessment to the necessity of the initial detention of the applicants, referring to the “turmoil after the attempted coup d’état” and “general conditions at the time of initial detention” deemed to have heightened the risk of interference with evidence and flight of suspects. However this accepted assessment of risk were general and abstract and not linked with the applicants’ individual circumstances or their alleged conducts. Moreover, by failing to have required the judicial authorities to duly substantiate the alleged risk and demonstrate the need for the continued detention at each stage, the TCC seems to have reversed the relationship between the rule and exception in these cases going against the very idea of the right to liberty and detention as being a measure of “last resort”.

However, the TCC rejected as inadmissible the complaints about the length of detentions in these six cases on the basis of the lack of exhaustion of a compensatory remedy provided under Art. 141 of Turkish Code of Criminal Procedure and consequently did not take into account the overall length of the applicants’ detention in its assessment of lawfulness and necessity. Moreover, as to the complaint about a violation of freedom of expression, the TCC again briefly referred to its findings related to the lawfulness of initial detention, allegedly based on a reasonable suspicion and pursuing a legitimate aim, and found no violation of freedom of expression either. In this way, the TCC neither carried out a meaningful assessment of “lawfulness” nor the necessity or proportionality of interference with the journalists’ rights under Articles 5 and 10 of the ECHR. Rather, while the TCC paid lip service to standards by stating that compelling reasons and robust control are required in reviewing detention and interference with journalists’ freedom of expression, it gave no meaningful application of these principles in the cases before it.

This fragmented approach is also seen in the case of Osman Kavala, in which the applicant was accused of organising and financing the Gezi protests of 2013 on the basis of his activities as a civil society leader. The TCC endorsed the prosecutor’s perception that the Gezi protests had been violent and aimed at overthrowing the Government and that the applicant took part in activities and meetings contributing to this aim (para.70 of the judgment). The five dissenting judges challenged the majority on the ground that no evidence showed substantiating links between the applicant’s conduct and alleged violent incidents referred to by prosecuting authorities, and that the necessity and proportionality of his continued detention had not been justified. One dissenting judge also noted that although the Gezi protests were made the subject of numerous legal actions, no court decision or administrative actions had ever referred to them as “violent rebellion” aiming at overthrowing Government by force. However, the TCC decided by a majority that the applicant’s pre-trial detention was lawful based on a reasonable suspicion and was proportionate given the difficulties in investigating terrorism related offences.

Even though the applicant’s pre-trial detention was still continuing at the time of the judgment and that he had not been brought before a judge during the 17 month-long investigation period, the TCC asserted that a compensatory remedy, which does not capable of securing a release of a detained person, was an appropriate remedy which must have been exhausted for this allegation, finding this complaint inadmissible. However, the ECtHR already found that the compensatory remedy available under Turkish law was ineffective in cases where pre-trial detention was ongoing (see for example, Sahin Alpay v. Turkey, §  82). Moreover, with regards the right to an effective challenge against continued detention, Article 5(4) of the ECHR requires an oral hearing of a detainee by a judge at reasonable intervals (see Çatal v. Turkey, § 33; Altınok v. Turkey, § 45).  Similarly the applicant’s complaint about the lack of access to the case file, including evidence brought against him by prosecuting authorities during the investigation phase, was not found to be an impediment depriving him of an opportunity to effectively challenge his continuing detention and refute the allegations against him,contrary to the principles of adverserial procedure and equality of arms, applicable as far as possible in the context of detention proceedings . In the end with this approach and reasoning, the TCC may have legitimised the ongoing detention and prosecution of the applicant, causing more harm than good in the given case.

 Now the ball is again with the ECtHR. Close attention will be paid to the Court’s approach on these important cases representing blatant violations of right to liberty, freedom of expression, and association. In the Osman Kavala case it may be too late to reverse the severe chilling effect already spread by these prosecutions, making any attempt to provide reparation or restitutio integrum impossible for the victims. But the cases certainly highlight the urgent need to critically assess and discuss the role of national and international human rights mechanisms, including the timeliness and quality of their approaches, if effective protection is to be provided not just in theory but also in practice in the future.

TLSP and the London Legal Group submit evidence to the United Nations Human Rights Council’s universal periodic review of Turkey

This week TLSP and LLG made submissions to the UNHRC as part of Turkey’s third Universal Periodic Review process. The submissions focus on:

• the effect of the current security situation in the east and southeast of Turkey on fundamental rights and freedoms

• continued discrimination against the Kurdish population

• the effect of measures adopted under the State of Emergency (including mass dismissals of civil servants, an increase in reported cases of arbitrary detention, torture and ill treatment, erosion of the independence of the judiciary and the active persecution of legal professionals)

• ongoing impunity with regards to alleged human rights violations conducted by state officials

The submissions can be downloaded here.

The Turkey Litigation Support Project, the International Commission of Jurists and Amnesty International Submit a Third Party Intervention in the Case of Piskin v Turkey Pending Before the ECtHR

Amnesty International, the International Commission of Jurists and the Turkey Litigation Support Project intervened this week in the case of Piskin v. Turkey before the European Court of Human Rights.

The case concerns the dismissal of a public institution employee pursuant to Emergency Decree no. 667 due to his alleged links to an organisation prescribed as terrorist by the State. Relevant to the situation of almost 130,000 persons dismissed from their jobs during the period of the State of Emergency, the case raises significant questions regarding procedural rights in employment proceedings leading to the dismissal of state employees on grounds related to national security, including under a State of Emergency as well as the application of the principles of legality, legal certainty and non-retroactivity in the field of counter-terrorism.

 The Interveners address the following matters in the intervention:

1. the applicability of the criminal limb of Article 6 of the European Convention of Human Rights (Convention) to dismissal proceedings in cases where the proceedings involve a determination of facts which constitute a “criminal offence” as understood under the autonomous meaning of the term in the Convention,

2.   the lack of procedural guarantees in the dismissal process necessary to comply with Article 6, in particular the principle of presumption of innocence,

3. the application of the principles of legality, legal certainty and non-retroactivity to dismissal proceedings, where they determine membership of, participation in or association with, a terrorist group, including with regard to Article 7 of the Convention and the application of state of emergency decrees to events that occurred before the declaration of the State of Emergency.

Reviewing the Turkish “mass dismissal” process carried out by way of State of Emergency decrees in the context of the State of Emergency, the Interveners highlight that “the permanent nature of the sanctions suggest that their purpose is more punitive and deterrent rather than preventative” and taken as a whole have a severe impact on a person’s life, serving the function of a criminal rather than administrative sanction. Despite this, many of those dismissed could not avail themselves of their defence rights as protected under domestic and international law. In a process that failed to meet the procedural safeguards protected in Article 6 of the Convention, many dismissed public sector workers and employees of the public institutions working under different forms of contracts challenged their dismissals in domestic mechanisms without knowing what allegations they were facing, and without knowledge of any evidence against them.

 The intervention can be accessed here.

URGENT ACTION: The arbitrary detention and long-term imprisonment of lawyers from HHB (the Peoples’ Law Office) and ҪHD (the Progressive Lawyers Association)

The Turkey Litigation Support Project, together with 24 prominent lawyers' and human rights organisations, sent an urgent action letter (available here) to the UN Special Rapporteurs this week expressing serious concerns regarding the arbitrary detention and long-term imprisonment of 18 human rights lawyers from Halkın Hukuk Bürosu (HHB, the Peoples’ Law Office) and Ҫağdaş Hukukçular Derneği (ҪHD, the Progressive Lawyers Association) in violation of fair trial principles and of their right to freedom of expression. 

The urgent action letter requests the Special Rapporteurs to urge the Turkish authorities to facilitate the immediate acquittal of lawyers Ayşegül Çağatay, Yağmur Ereren, Didem Baydar Ünsal, Yaprak Türkmen, Ahmet Mandacı, Zehra Özdemir, Ebru Timtik, Özgür Yılmaz, Behiç Aşçı, Sukriye Erden, Selçuk Kozağaçlı, Suleyman Gokten, Aytaç Ünsal, Engin Gökoğlu, Aycan Çiçek, Naciye Demir, Ezgi Cakir and Barkın Timtik; and the urgent release of those in detention pending appeal.  We further requested the Special Rapporteurs to urge the Turkish authorities to:

• stop all forms of harassment, including judicial harassment, against these individuals as well as other lawyers and human rights defenders in Turkey, and allow them to perform their professional and lawful functions without intimidation or improper interference

• immediately stop using oppressive methods against individuals, particularly lawyers and other human rights defenders, who are critical of the human rights violations perpetrated by the State authorities including the security forces

• ensure the independence of the judiciary by law and practice and to prevent judges, prosecutors and lawyers from undue interferences

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Ayse Bingol Demir, Turkey Human Rights Litigation Support Project, London 

Jérôme Gavaudan, President, Conférence des Bâtonniers de France et d’Outre-Mer 

Andrea Mascherin, President, Consiglio Nazionale Forense, Italy 

José de Freitas, President, The Council of Bars and Law Societies of Europe 

Martine Jacquin, Présidente, Défense Sans Frontière-Avocats Solidaires 

Thomas Schmidt, Secretary General, European Association of Lawyers for Democracy and World Human Rights 

Robert Sabata Gripekoven, President, European Democratic Lawyers - Avocats Européens Démocrates 

Newal Ciftci, President, Fair Trial Watch 

Hans And Symone Gaasbeek, Secretary, The Foundation Day of The Endangered Lawyer 

Bill Bowring, Joint International Secretary, Haldane Society of Socialist Lawyers 

Evelyn Dürmayer, representative at the UN Vienna, International Association of Democratic Lawyers 

Tony Fisher, Chair Human Rights Committee, The Law Society of England & Wales 

Phon van den Biesen, President, Lawyers for Lawyers 

Gail Davidson, Director, Lawyers’ Rights Watch Canada 

Saniye Karakas, London Legal Group 

Edre Olalia, Secretary General, National Union of Peoples' Lawyers, Philippines 

Maria Hessen Jacobsen, HRC, Norwegian Bar Association 

Jerôme Dirou, Bâtonnier, Ordre des Avocats au Barreau de Bordeaux 

Alain Cockenpot, Bâtonnier, Ordre des Avocats au Barreau de Douai 

Farid Hamel, Bâtonnier, Ordre des Avocats au Barreau de Lyon 

Jean-Marie Chabaud, Bâtonnier, Ordre des Avocats au Barreau de Nimes 

Basile Ader, Vice Bâtonnier, Ordre des Avocats au Barreau de Paris 

Franziska Nedelmann, Board Member, Republikanischer Anwältinnen- und Anwälteverein 

Hein Vogel, Chariman, Vereniging Sociale Advocatuur, Nederland 

The Turkish Constitutional Court issues a judgment in the case of Ayşe Çelik (Application no 2017/36722)

On 9 May 2019 the Turkish Constitutional Court, as the last instance domestic court for reviewing human rights violation complaints, issued a judgment in a case concerning the criminal conviction of the applicant, Ayşe Çelik, for her statement made on a TV programme.

 On 8 January 2016, the applicant, a teacher from Diyarbakir, called into a popular TV show and criticised ongoing violence and the death of civilians during counter-terrorism operations taking place in south-east Turkey. In a part of her comments, she stated " [a]re you aware of what is going on in the east, in the south-east of Turkey? Here, unborn children, mothers and people are being killed. Be sensitive as an artist and human being. See, hear and lend us a hand.  Do not let those people those children die; do not let the mothers cry anymore. People are struggling with starvation and thirst, babies and children too. Don’t remain silent.”

In response to this statement, the Bakirkoy Public Prosecutor filed an indictment against the applicant with a criminal charge of disseminating propaganda in support of the PKK pursuant to Article 7(2) of the Anti-Terror Law. On 26 April 2017, the Bakirkoy 2nd Heavy Penal Court convicted the applicant and sentenced her to one year and three months imprisonment. In its decision the first instance court held that the applicant had justified and legitimised the actions of a terrorist organisation by presenting the state’s military operations against a terrorist organisation as actions causing the death of innocent people, amounting to propaganda in support of PKK.

The Istanbul Regional Court of Justice rejected the applicant’s appeal on the same grounds with a final decision and the applicant’s conviction became final. The execution of the applicant’s sentence was postponed for six months for maternity as the applicant gave birth. Subsequently, she had served part of her sentence together with her baby until her request for postponement of the execution of her sentence was once again granted.

On 27 October 2017, the applicant submitted an individual application to the Constitutional Court complaining that her conviction had constituted a violation of her right to freedom of expression, the prohibition of punishment without law and the right to a fair trial, as guaranteed under Articles 10, 7 and 6 of the European Convention of Human Rights (ECHR).

Whilst the application was pending before the Constitutional Court, the applicant’s lawyers commissioned an expert opinion to be submitted in the proceedings. In September 2018, the expert opinion prepared by Professors Helen Duffy and Philip Leach of the TLSP, on guiding principles to be taken into account for the prosecution of propagandising of terrorism in the light of Turkey’s international human rights obligations and general rules of criminal law, was submitted to the Constitutional Court. The text of the expert opinion can be found here in English and Turkish.

Acknowledging that propaganda of terrorism restricts freedom of expression, the Constitutional Court held that to determine lawfulness special attention must be paid to whether or not a given statement incited to violence and posed a risk of danger for provocation of terrorism. The Constitutional Court observed that Article 7(2) of the Anti-Terror Law did not criminalise any expression associated with terrorism but only those justifying, praising or inciting to resort to methods constituting coercion or violence used by a terrorist organisation. For propaganda of a terrorist organization to be criminalised, the Constitutional Court referred to the two conditions set out under Article 5 of the Council of Europe Convention on the Prevention of Terrorism, namely, the special intent to disseminate propaganda for terrorism and the risk that  a terrorist offence would be committed. 

To assess the danger and the necessity of interference, the Constitutional Court called for a complete analysis of the circumstances of each case taking into account content, context, intention, timing and impact of the statement as a whole. On this basis, the Constitutional Court disagreed with the lower courts’ analysis and found that the applicant’s statement was a call for stopping the conflict in the region, irrespective of its causes, and aimed at raising public awareness of ongoing incidents of deaths and grievances during security operations, which was an issue of public interest. In this connection, the Constitutional Court reiterated that the freedom enjoyed for expressions related to matters of public interest was a broad one, calling for compelling reasons to justify any interference, and that acts or negligence of public authorities were subjected to public scrutiny in a democratic society.

Observing that the applicant’s statement had not praised or glorified those who took an active part in conflict nor had it aimed to instill hatred, the Constitutional Court decided that the applicant’s conviction under Article 7(2) of the Anti-Terror Law did not correspond to “a pressing social need” and thus, her right to freedom of expression under Article 26 of the Turkish Constitution was violated. In the operative part of its judgment, besides awarding the applicant a sum of compensation, the Constitutional Court urged the first instance court to review its decision according to its ruling and to take measures to cease the violation of the applicant’s right. Upon this ruling, the applicant has been released from prison.

It is an important decision in which the Constitutional Court pointed out guiding principles, deriving from both international law and the case-law of the ECtHR, to be taken into account by the domestic legal authorities in the interpretation and application of Article 7(2) of the Anti-Terrorism Law. However, the Constitutional Court seems to have overlooked the applicant’s complaints about the broad and imprecise nature of the impugned criminal provision resulting in arbitrary prosecution of peaceful expressions. Thus the Constitutional Court missed the opportunity to have addressed the inherently problematic aspects of the  the offence of propagandising of a terrorist organisation, as formulated under Article 7(2) of the Anti-Terrorism Law, which does not provide a clear and foreseeable legal basis for restrictions that enable individuals to anticipate the consequences of their conduct and to prevent abuse by authorities. In the end, as the violation was found on the basis of not complying with the condition of necessity in a democratic society and not on the ground for legality of inference, the decision may not have as broad an impact on the protection of freedom of expression in Turkey as it should. Moreover, despite the applicant’s lawyers’ complaint under Article 18 of the ECHR, the Constitutional Court failed to examine or even refer to the applicant’s allegation that the real aim of her conviction was to silence or punish her for having made a public comment perceived to be critical of the authorities’ conduct.

Despite these shortcomings, the decision provided for Article 10-compliant interpretation of Article 7(2), which has the potential to set course for the many similar cases, such as those concerning the Academics for Peace, pending before the domestic courts, bearing in mind that in the recent years the impugned provision has been extensively applied to restrict legitimate criticism and peaceful expressions in Turkey. It remains to be seen whether the Constitutional Court will continue adopting this approach and reinforce the protection of freedom of expression in its future rulings, given the apparent fluctuations in its judicial performance. It is also to be seen whether the prosecuting authorities and instance courts will feel bound to comply with this ruling and refrain from unjustified prosecutions of peaceful expressions, like the one raised in the present case.

Turkey: A Paradigm Shift

On May 15th at Columbia SIPA, TLSP will co-host a panel bringing together distinguished speakers to discuss the paradigm shift fuelled by the latest local elections in Turkey. On May 6th, the Turkish Supreme Election Council’s decision on the re-run of local elections in Istanbul shook the country to its core. Panellists will discuss what the future holds for citizens politically and socially, where this shift will take the country next, and importantly what this means for the rule of law and freedom of expression. In light of Professor Fusun Ustel’s imprisonment on Tuesday May 7th 2019, panellists will expand on academic freedom. 

Speakers: 

Chad Kautzer, Chair - Professor of Philosophy, Lehigh University

Sarah Clarke, Article 19, Head of Europe and Central Asia

Ayse Bingol Demir, Lawyer, Turkey Litigation Support Project

Cem Ozatalay, University in Exile Visiting Research Scholar at The New School

Giran Ozcan, HDP US Representative

Aykan Erdemir, Former CHP MP, Senior Fellow, Foundation for Defense of Democracies 

Sezgin Tanrikulu, CHP Member of Parliament (via Skye)

Co-Hosts:

Research Institute on Turkey

Article 19

Columbia Global Freedom of Expression

Columbia Institute for the Study of Human Rights

Turkey Litigation Support Project

Location:

Columbia SIPA

420 W 118th Street, New York, NY

Room #707

For more information: https://m.facebook.com/events/350034255717809/

The European Court of Human Rights issues judgment in the case of Alparslan Altan v. Turkey

During and after the coup attempt, the Ankara public prosecutor’s office opened a criminal investigation in which some 3,000 judges and prosecutors were taken into police custody and placed in pre-trial detention. Mr Alparslan, a former member of the Turkish Constitutional Court, was detained on 19 July 2016 in connection with this investigation and remains in custody. Mr Alparslan was suspected of seeking to overthrow the constitutional order under Article 309 of the Turkish Criminal Code, and being a member of the FETO/PDY group (a designated terrorist organization under Article 314 of the Turkish Criminal Code) claimed to be behind the 15 July 2019 coup attempt. He was dismissed from the Constitutional Court following a plenary session held by the court on 4 August 2016. Mr Alparslan applied to the European Court of Human Rights (ECtHR) challenging his pre-trial detention, and the Court delivered its judgement in this case on 16 April 2019.

Prior to applying to the ECtHR, Mr Alparslan lodged an individual application with the Constitutional Court – complaining of both arbitrary detention and a lack of specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. In addition, he maintained that the domestic courts had not given sufficient reasons for ordering his detention, that the magistrates who ordered his pre-trial detention were not independent and impartial, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. Lastly, he argued that the process of his dismissal had infringed his rights to a fair trial, to respect for his private life and home, to freedom of expression, and constituted discrimination.

With regard to the lawfulness of his detention and his dismissal, the Constitutional Court held on 11 January 2018 that he had failed to bring an appropriate compensation claim under Article 141(1) of the Turkish Code of Criminal Procedure (CCP) and had therefore not exhausted all remedies. All remaining complaints were held to be manifestly ill founded.  

Before the ECtHR, the applicant complained that he had been arbitrarily placed in pre-trial detention, and argued there had been no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention. The ECtHR examined the complaints under Article 5(1) and 5(3) of the Convention – finding Turkey to be in violation of 5(1)(c).

In its evaluation, the Court paid special attention to Mr Alparslan’s  position as a member of the Constitutional Court, emphasizing the “special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties” (para. 102). The Court noted that they must be “particularly attentive to the protection of members of the judiciary when reviewing the manner in which a detention order was implemented from the standpoint of the provisions of the Convention.” The Court went on to highlight the importance of the general principle of legal certainty and the requirement that any law outlining conditions for deprivation of liberty should be clearly defined, foreseeable in its application, so that it meets the standard of lawfulness.

The ECtHR found that the Constitutional Court’s interpretation of Article 100 of the CCP, which formed the legal basis of the applicant’s pre-trial detention, to be both in breach of the principle of legal certainty and manifestly unreasonable. The Court found that the national courts’ extension of the scope of the concept of in flagrente delicto and its application in the present case did not take place in accordance with a procedure prescribed by law as required by Article 5(1) of the Convention. A leading judgement adopted in October 2017 by the Court of Cassation in Turkey had held that at the time of the arrest of judges suspected of the offence of membership of an armed organisation, there was a situation of discovery in flagrente delicto – warranting pre-trial detention.

In the Court’s view, “this amount[ed] to an extensive interpretation of the concept of discovery in flagrante delicto, expanding the scope of that concept so that judges suspected of belonging to a criminal association are deprived of the judicial protection afforded by Turkish law to members of the judiciary […] negat[ing] the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive.” Moreover, the Court held that this extensive interpretation could not be regarded as an appropriate response to a state of emergency. Such an approach (which was not adopted in response to the exigencies of the situation as required under Article 15 of the Convention) was found not only to be problematic in terms of legal certainty, but also negates procedural safeguards affording judges independence from the executive, and has “legal consequences reaching far beyond the legal framework of the state of emergency” which could in no way be justified.  

Regarding the alleged lack of reasonable suspicion that the applicant committed an offence, a safeguard guaranteed by Article 5(1)(c) of the Convention, the Court noted that the items of evidence used to justify the applicants continued detention were gathered long after his pre-trial detention. Given that the case in question concerned his pre-trial detention, it was found that they need not  examine the items of evidence to determine whether the suspicion grounding the order for his detention was “reasonable.” Although the subsequent gathering of evidence in relation to the charge against the applicant could have reinforced a suspicion linking him to the commission of terrorist-type offences, it could not have formed the sole basis of a suspicion justifying his initial detention. The Court went on to find that “[t]he detention order was based on a mere suspicion of membership of a criminal organisation. Such a degree of suspicion cannot be sufficient to justify an order for a person’s detention.”

As regards the notion of “reasonableness” of the suspicion on which the arrest or detention had to be based during the state of emergency, the Court observed that the difficulties facing Turkey in the aftermath of the attempted military coup were undoubtedly a contextual factor which had to be taken into account when interpreting and applying Article 5 of the Convention in the present case. This did not mean, however, that the authorities had carte blanche under Article 5 to order an individual’s detention during the state of emergency without any verifiable evidence or information, or without a sufficient factual basis satisfying the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion. After all, the “reasonableness” of the suspicion on which deprivation of liberty had to be based formed an essential part of the safeguard laid down in Article 5 § 1 (c).

The judgment is an important one, highlighting key issues concerning the importance of maintaining procedural safeguards– even in the context of a state of emergency. It is the first decision concerning the pre-trial detention of a judge following the coup attempt, and has the potential to set precedent for other cases concerning the ongoing detention of a number of judges and prosecutors.

Filiz Kerestecioglu Demir v. Turkey- the impact of stripping of parliamentary immunity of an opposition MP on her right to freedom of expression

On 5 March 2019, the European Court of Human Rights communicated the case of Kerestecioglu Demir v. Turkey with the Turkish Government. The applicant, Ms Kerestecioglu, challenges the waiver of her parliamentary immunity through a constitutional amendment procedure allowing a prosecutor to pursue a criminal investigation against her on account of her participation in a peaceful public assembly as a Parliamentarian. The applicant alleges that she is being prosecuted due to her political views as an opposition politician, amounting to a violation of her right to freedom of opinion and expression protected under Article 10 of the Convention.

On 1 November 2015 the applicant was elected as a deputy and since then she has been carrying out her role as parliamentarian in the National Assembly. A prosecutor filed an investigation report against the applicant for her attendance at a public assembly, which was transmitted to the Parliament for the waiver of her immunity.

On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for waivers of immunity had been transmitted to the National Assembly before the date of its adoption.

The Court posed the following questions to the parties:

1. Has the applicant exhausted domestic remedies? Particularly, considering the relevant judgments of the Turkish Constitutional Court (TCC) whether the applicant was obliged to bring an individual application before the TCC?

2. Does the lifting of immunities following the constitutional amendment amount to an interference in the applicant’s right to freedom of expression, as a member of the opposition, within the meaning of Article 10 of the Convention?

   If so, is the alleged interference prescribed by law and necessary in a democratic society? In particular, could it be considered that the lifting of parliamentary immunities is outside the standard procedure prescribed by Articles 83 and 85 of the Constitution, corresponds to a "pressing social need" and is "proportionate to the aim legitimate aim' within the meaning of the Court's case-law?

   Regarding the decision of the legislature following to the constitutional amendment procedure, did it have a deterrent effect on the exercise by the applicant of her right to freedom of expression?

3. What would be the concrete consequences of the lifting of the applicant's parliamentary immunity? Parties are invited to submit relevant documents relating to the criminal investigation against the applicant.

This case is important as it is one of the first to evaluate the stripping of parliamentary immunity of an MP and potential repercussions of a criminal prosecution on the freedom of expression and political activities of an opposition politician.

Diyarbakır Büyükşehir Belediyesi Meclisinin önceki dönem 6 üyesi, 674 sayılı OHAL KHK'si uyarınca meclis faaliyetlerinin askıya alınmasına ilişkin BM İnsan Hakları Komitesi'ne başvurdu

Diyarbakır Büyükşehir Belediyesi Meclisinin bir önceki dönem 6 üyesi, 674 sayılı OHAL Kanun Hükmünde Kararnamesi uyarınca meclis faaliyetlerinin askıya alınmasına ilişkin  4 Nisan 2019 tarihinde Birleşmiş Milletler İnsan Hakları Komitesi'ne (UNHRC) başvurdu. Türkiye Dava Destek Projesi (Turkey Litigation Support Project), başvurucuların temsilcisi avukat Cihan Aydın ile birlikte başvurunun hazırlanmasında çalıştı. Bilindiği üzere, Belediye Meclisinin işlevleri, 674 sayılı Kanun Hükmünde Kararname uyarınca hükümet tarafından atanan bir 'kayyum' tarafından üstlenilmiş, Belediye Meclisinin geçmiş dönem seçilmiş üyelerinin toplanmaları ve kamu hizmetine katılmaları fiilen engellenmiş ve bu durum olağanüstü hal kaldırıldıktan sonra da dayanaksız bir şekilde sürdürülmüştü.

Başvurucular, BM İnsan Hakları Komitesi’ne taşıdıkları şikayetlerinde,  Medeni ve Siyasi Haklara İlişkin Uluslararası Sözleşmeye (MSHUS) taraf olan Türkiye’nin, 4. madde uyarınca Sözleşme ile garanti altına alınan hakları askıya almak için gerekli şartları yerine getirmediğini ve Diyarbakır Büyükşehir Belediye Meclisinin faaliyetlerinin askıya alınmasının MSHUS'nin 25, 26 ve 2 (3) maddelerinde öngörülen haklarını ihlal ettiğini belirtmişlerdir.  Bu kapsamda, askıya alma  bildiriminin  yeterince kesin olmadığını, şikayetin sunulduğu sırada tedbirlerin halen devam ettiğini ve bu tedbirlerin gerekli ve terörizme karşı mücadele  adı altında belirtilen müdahale amaçları ile orantılı olmadığını ileri sürmüşlerdir.

Ayrıca başvuruda, 674 sayılı Kanun Hükmünde Kararname ile getirilen kısıtlamaların yasal ve makul olmadığı belirtilmiştir. Kararnamenin  açıklık ve öngörülebilirlikten yoksun ve  ulusal güvenlik tehdidini ortadan kaldırma amacına  ulaşmak için ne gerekli ne de orantılı olduğu tartışılmıştır.  Başvuruculara göre, bütün bunlara ek olarak, kararname, yeterli yasal güvenceleri içermemiş ve keyfi bir şekilde uygulanmıştır. Dolayısıyla, başvurucuların  ve seçmenlerin, belediye meclisinin askıya alınmasından sonra temsilcilerinin seçilmesi yoluyla kamu hizmetlerine katılımları engellendiği için  MSHUS'nin 25 (a) ve (b) maddeleri ile garanti altına alınan hakları ihlal edilmiştir. 

Başvuranlar ayrıca, Kanun Hükmünde Kararnamenin, ağırlıklı olarak Kürt politikacılarını ve belirli bir siyasi görüşe sahip olanları hedef alan bir şekilde uygulandığını dolayısıyla MSHUS’nin 26. maddesi uyarınca ayrımcılığa uğramama haklarının ihlal edildiği konusunda şikayette bulunmuşlardır.

Son olarak, başvurular, Türkiye'de yargının bağımsızlığı, tarafsızlığı ve yeterliliği ile ilgili endişelerini öne sürmüş, yürütmenin bu organlar üzerindeki etkisinin yanı sıra, olağanüstü halden kaynaklanan eylemlerden dolayı  kanun yollarına ulaşımın eksikliği ve karışıklığının, etkisiz bir hukuk yolunun zemininin oluşmasına katkıda bulunduğunu ileri sürmüşlerdir. 

Anayasa Mahkemesinin bu konulara dair başvurularda  konu bakımından yetkisizlik nedeniyle verdiği ret kararları başvuranların maruz kaldıkları hak ihlalleri için etkili bir iç hukuk yolunun bulunma ihtimalini ortadan kaldırmıştır. Bu konuda başvurucuların tüketebileceği mevcut başka bir kanuni merci ve etkili bir hukuk yolunun bulunmaması nedeniyle bu durum, 25 ve 26. maddeleri ile birlikte okunduğunda MSHUS’nin  2 (3) maddesinin ihlali sonucunu doğurmuştur. 

Bu başvuruya ilişkin daha fazla bilgi için bize info@turkeylitigationsupport.com adresinden ulaşabilirsiniz.

Complaint concerning the suspension of the Council of the Greater Municipality of Diyarbakır in South-eastern Turkey filed before the UNHRC

On 4 April 2019, a complaint concerning the suspension of the Council of the Greater Municipality of Diyarbakır in south-eastern Turkey was lodged with the United Nations Human Rights Committee (UNHRC). The Turkey Litigation Support Project worked with Mr Cihan Aydin, representative of the 6 applicants. Under Emergency Decree Law No. 674, the applicants, who were at the time elected members of the Municipal Council, were prevented from holding meetings and participating in public affairs. Their functions were assumed by a ‘trustee’ appointed by the government under Emergency Decree Law No. 674, a situation that continues despite the lifting of the state of emergency.

Before the UNHRC, the applicants contend that Turkey, a state party to the International Covenant on Civil and Political Rights (ICCPR), has failed to meet the requirements necessary for lawful derogation under Article 4 and that the suspension of the Council of the Greater Municipality of Diyarbakir constitutes violations of Articles 25, 26 and 2(3) of the ICCPR. The notice of derogation was insufficiently precise, the measures were still ongoing at the time the complaint was submitted, and the measures have neither been shown to be necessary or proportionate to the stated aims of the fight against terrorism.

 Moreover, restrictions adopted by Decree Law No. 674 cannot be said to be lawful and reasonable. The law lacked clarity and foreseeability, and was neither necessary or proportionate in its aim of addressing the perceived national security threat. Additionally, it lacked sufficient legal safeguards and has been applied arbitrarily. There has thus been a violation of the applicants’ and the electorate’s rights under Article 25 (a) and (b) of the ICCPR as they were prevented from exercising their right to take part in the conduct of public affairs through the election of representatives after the suspension of the Municipal Council.

 The applicants also complained that the law in this case was applied in a manner that targeted predominantly Kurdish politicians and those of a particular political opinion, thereby constituting a violation of the right of the applicants to non-discriminatory treatment under Article 26 of the ICCPR.

 Lastly, the complaint raises concerns surrounding the independence, impartiality and competence of the judiciary in Turkey. The influence of the executive over these bodies, as well as confusion and lack of access to adequate legal avenues for redress, has contributed to an ineffective basis for legal remedies for rights violations flowing from state of emergency measures. The Constitutional Court’s decision to reject the applicants’ case on the grounds that it is unable to constitutionally review legislative acts, has resulted in a clear lack of accessibility to even the very possibility of an effective domestic remedy for the rights violations suffered by the applicants. In the absence of any other available remedy, or adequate aggregate of remedies, this constitutes a violation of Article 2(3) when read with Articles 25 and 26 of the ICCPR.

 For more information on the case, contact us at info@turkeylitigationsupport.com

Hüseyin Uzun v Turkey - The impact of State of Emergency Measures on the Right to Education

On 8 January 2019, the European Court of Human Rights communicated the case of Hüseyin Uzun v Turkey with the Turkish Government. The applicant, Mr Uzun, challenges Emergency Legislative Decree No. 677 on the grounds that it violated his right to education protected by Article 2 of Protocol 1 of the Convention.

On 2 August 2016, the applicant Mr Uzun, was placed in pre-trial detention in Burdur Prison on suspicion of being a member of the FETÖ / PDY organisation. At the time, Mr Uzun was enrolled in a training program at the Anadolu University of the Faculty of Public Administration. On 23 November 2016, the prison administration sent Mr Uzun a copy of decree law no. 677 notifying him that he could not, under Article 4 of the Decree, participate in exams for the duration of the state emergency, and the entire duration of his detention. 

On 22 December 2016 the applicant lodged an individual petition before the Constitutional Court, alleging that the ban introduced by the emergency decree law violated his right to education. Mr Uzun’s appeal was dismissed as manifestly ill-founded by the Constitutional Court on 18 June 2018. The Court held that the refusal to allow the applicant to sit his exam was based on an emergency law pursuing a legitimate aim, namely to ensure the discipline and security within the prison establishment. The Court indicated that as a result of the attempted coup, many persons accused of terrorist offences had been detained and/or convicted on similar charges, and therefore the number of officers responsible for the safety and protection of detainees had decreased significantly. In light of these elements and the Court’s previous decision in Mehmet Ali Eneze, it could not be said that the restriction on the applicants right to education was not necessary to achieve a legitimate aim. 

The Court posed the following questions to the parties:

• Did the inability of the applicant to sit his university exams as a result of the ban introduced by Legislative Decree no. 677 infringe his right to education as guaranteed by Article 2 of Protocol o 1 to the Convention?

• The government was invited to provide information on the number of prisoners affected by the ban introduced by Legislative Decree no. 677, as well as information on the different types of exams available to detainees and their organisation.

This case is important as it is one of the first to evaluate interference with the right to education during a state of emergency.

European Court of Human Rights: Cancellation of passports of Turkish academics threaten academic freedoms

On 5 March 2019, the Turkey Litigation Support Project, Amnesty International, ARTICLE 19 and PEN International submitted a third party intervention before the European Court of Human Rights (ECtHR) on the key case concerning the cancellation of passports of three academics from Turkey – Alphan Telek, Edgar Şar and Zeynep Kıvılcım. In retaliation for signing a petition calling for peace in Southeast Turkey known as the “Academics for Peace” petition, the three scholars were dismissed from their jobs, had their passports cancelled and banned from public service under Turkey’s state of emergency legislation.

The intervention highlights the importance [and cross-cutting nature] of academic freedom, and the risks that restrictions such as the one in this case pose to academics’ right to private life and the right to freedom of expression.  It also stresses the right to an effective remedy as a non-derogable right, even under a state of emergency. 

Helen Duffy, the co-supervisor of the newly formed Turkey Litigation Support Project, which coordinated the intervention, said “our joint intervention reminds the Court of the vital importance of academic freedom, democratic debate and access to effective remedies - all of which are under serious attack in Turkey today.”

Sarah Clarke, ARTICLE 19’s Head of Europe and Central Asia, said, “restrictions to academic freedom, as a result of the exercise of free opinion through the signature of a petition calling for peace are inacceptable. ARTICLE 19 has previously expressed concern over the violation of the right to freedom of expression in the “Academics for Peace” case and submitted an expert opinion on this case at national level. We now encourage the ECtHR to closely scrutinize any interference against the legitimate exercise of human rights in this case, and clearly question the effectiveness of domestic remedies in Turkey”. 

Carles Torner, Executive Director of PEN International, added, “these three individual cases illustrate the growing intolerance for critical voices in Turkey. Over 6000 academics have been dismissed under emergency decrees since July 2016, with devastating effects. The Academics for Peace case is a warning to all academics and intellectuals who would dare express dissenting views. With the effectiveness of domestic remedies for human rights violations being questioned by many, the ECtHR has a crucial role to play – in this particular case and beyond.”

 The UN Committee on Economic, Social and Cultural Rights highlights that despite the absence of a specific definition of academic freedom, this involves an institutional, individual and a public dimension. It is precisely in its latter dimension that academic freedom links with the building of a diverse and vibrant society. Any restriction on academic freedom may interfere with various other rights, including freedom of thought, expression, association, the right to education, liberty and security, freedom of movement and the right to a private life. 

According to UNESCO, restrictions on academics’ freedom of movement between states impedes the “interplay of ideas and information among higher education personnel throughout the world”, which the organisations submitting this intervention fear it represents an attack to academic freedom. Under international law, States should not only refrain from restricting such freedom, but also create and maintain a “conducive environment” for it to flourish, without imposing any restraints. Even in situations of emergency, restrictions on academic freedom must be in accordance with the law, must be necessary and accompanied by basic safeguards. In addition, restrictions imposed during an imposed state of emergency should be “exceptional and temporary” and should cease when the public emergency is over. 

The third party intervention also questions the existence of an enabling environment for the fulfilment of the right to effective remedy in Turkey. The UN Human Rights Committee underlines that “even if a State party, during a state of emergency, … may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation … to provide a remedy that is effective”. 

Lucy Claridge, Director of Strategic Litigation at Amnesty International, stated “The right to an effective remedy is one of the basic rule of law guarantees that cannot be dispensed with even in an emergency. Our intervention urges the ECtHR to confirm that this right remains fully applicable at all times.”

Turkey Litigation Support Project

Amnesty International

ARTICLE 19 

PEN International

TLSP represented in panel discussion

Ayşe Bingöl Demir participated in a panel discussion organized by Research Institute on Turkey (‘RIT’) on 1 February 2019. For the link of the event, see here.

Mehmet Osman Kavala v. Turkey (Application no. 28749/18)

TLSP and PEN International submitted written comments on 16 January 2019 as third party interveners in the case of Mehmet Osman Kavala v. Turkey (Application no. 28749/18) concerning pre-trial detention of a prominent civil society leader, publisher and human rights defender (HRD). The submission provides the Court with an outline of the factual context in respect of the situation of HRDs in Turkey. It addresses international standards governing the nature of states obligations towards HRDs and reflects on principles of human rights and criminal law that constrain a rule of law approach to resort to criminal law.

Our written comments are available here. The Council of Europe Commissioner for Human Rights also intervened in this case on 20 December 2018. Her submission can be found here.

Tunc and Yerbasan v. Turkey (Applications nos 4133/16 and 31542/16)

Hearing on Tunc and Yerbasan v. Turkey (Applications nos 4133/16 and 31542/16) was held on 13 November 2018 before the ECtHR.  Prof Helen Duffy was present at the hearing as advisors to the lawyers of the Applicants. The webcast of the hearing can be watched here.

Telek and two other applications v. Turkey

ECtHR communicated the case of Telek and two other applications v. Turkey on 26 September 2018. The case concerns the inability to travel abroad by the applicants, who were the signatories of the Academics for Peace petition, due the cancellation or non-renewal of their passports for an indefinite period of time under the state of emergency ruling. The communication of the Court can be found here.