According to the survey by the Arrested Lawyers Initiative carried out on the Turkish Justice Ministry’s statistics of their operations in the last five years, there is a steady increase in the use of anti-terrorism law on individuals by public prosecutors.
At present, Turkey’s anti-terrorism legislation consists of two separate laws: the Turkish Penal Code (5237) (“TPC”) and Anti-Terrorism Law (3713). Many articles of the Anti-Terrorism Law were rescinded but article 5, which is still in force, stipulates the aggravation of the terrorism-related sentences by half.
Sub-section 1 (Article 314/1) of Article 314 of the Turkish Penal Code criminalises the establishment and/or commanding an armed terrorist organisation, and the subsection 2 (Article 314/2)  criminalises the membership to an armed organisation. Under the Turkish Penal Code, these two offences carry the penalty of 7.5 to 22.5 years imprisonment.
According to our survey there is a steady increase in the use of anti-terrorism law on individuals by public prosecutors. So, while 8,324 people were indicted under Article 314 of the TPC in 2013, 146,718 people were indicted under the same Article in 2017.
Year 2013: 8.324
Year 2014: 20.475
Year 2015: 15.139
Year 2016: 30.710
Year 2017 : 146.718
These statistics highlight that Turkey has indicted 221,366 people with the charges of being member or leader of an armed terrorist organization within last five years.
Statistics also indicate that, in 2017, Turkish prosecutors have opened investigations against 527.154 individuals under Articles 309, 310, 311, 312, 312, 313, 314, 315, 316 of the TPC which stipulates the crimes against the Constitutional order.
Within the scope of those investigations, public prosecutors have indicted 176.491 individuals with the charges stipulated by the aforementioned articles whilst have given nol-pros decisions for almost seventy thousand individuals. As it is seen, investigations concerning 281.823 individuals are yet to be concluded.
The problem is that the Turkish Penal Code contains neither the definition of what constitutes armed organizations and armed groups nor the offense of membership. The lack of legal definitions and criteria of what constitutes an armed terrorist organization and the offense of membership in the armed terrorist organization makes these articles prone to arbitrary application and abuse. Vague formulation of the criminal provisions on the security of the state and terrorism and their overly broad interpretation by Turkish judges and prosecutors make all critics, particularly lawyers, human rights defenders, journalists, and rival politicians, a potential victim of judicial harassment. This indistinct area under the Turkish Penal code is actively used by the Turkish government to investigate, prosecute and convict opponents.
Turkey also has been using the vague formulation of the anti-terrorism legislation in his hostage diplomacy. According to a report entitled “Erdogan’s Hostage Diplomacy – Western Nationals in Turkish Prisons” undertaken by the Foundation for Defence of Democracies (FDD), more than 30 Western nationals have been jailed in Turkey since the failed military coup of July 15, 2016. Almost all of these foreign citizens were accused of terrorism-related offenses.
Besides foreigners, deputies of People’s Democratic Party (HDP) and the Republic People’s Party (CHP), the chairperson and the director of the Amnesty (Turkey branch) Taner Kilic and Idil Eser, revered philanthropic Osman Kavala, 1,542 lawyers including presidents of 14 regional bar associations, more than 150 journalists, and innumerable others have all been accused of being member of an armed terrorist organization or aiding and abetting one or more of those.
For years, Turkey’s anti-terrorism legislation has been criticised by the European Union, the Council of Europe, the United Nation’s human rights bodies and international human rights organization. The European Union and the Council of Europe has urged Turkey to make its anti-terrorism legislation compliant with human rights standards, including with the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.