[Analysis] Turkey abuses anti-terror laws to suppress critics

According to the survey by the Arrested Lawyers Initiative carried out on the Turkish Justice Ministry’s statistics of their operations in the last ten years, there is a steady increase in the use of anti-terrorism law on individuals by public prosecutors.

Figures

According to our survey there is a steady increase in the use of anti-terrorism law on individuals by public prosecutors. So, while 8.416 charges were filed under Article 314 of the TPC in 2013, this number became 146.731 in 2017, 115.753 in 2018, 54.464 in 2019, 33.885 in 2020, and 30,756 in 2021. These statistics highlight that Turkish public prosecutors have filed more than 450,000 charges under Article 314 of the Turkish Penal Code within the last nine-years. What is worse, between 2016 and 2021 more than 310,000 individuals have been sentenced for membership of an armed terrorist organisation.

Our findings correspond with the statement of the Minister of Interior Süleyman Soylu dated 20 February 2021 when he said 622,646 people have been subjected to criminal investigations over their links with the Gülen Movement, which is designated as a terrorist organisation by the Turkey’s AKP Government, while 332,884 of those have been arrested by the police (gözaltı in Turkish).

According to a report of the Council of Europe, Turkey has the largest population of inmates convicted for terrorism-related offences. The report shows there are currently a total of 30,524 inmates in COE member states who were sentenced for terrorism, and Of those 29,827 are in Turkish prisons.


Problem

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 Many articles of the Anti-Terrorism Law were rescinded but article 5, which is still in force, stipulates the aggravation of the terrorism-related sentences by half.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[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) [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.

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[3].  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[4] 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, philanthropic Osman Kavala, more than 1,600 lawyers including presidents 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.

ECtHR v. Turkish courts

European Court of Human Rights decided (Imret vs Turkey, Isikirik vs Turkey) that convictions under Articles 220 § 7 and 314 § 2 of the Turkish Criminal Code violate Article 11 of the Convention.[6]

In the light of the aforementioned considerations, the Court concludes that Article 220 § 7 of the Criminal Code was not “foreseeable” in its application since it did not afford the applicant the legal protection against arbitrary interference with his right under Article 11 of the Convention (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 67, ECHR 2012, and Işıkırık, cited above, § 70). Hence, the interference resulting from the application of Article 220 § 7 was not prescribed by law. 

Likewise, On 3 December 2019, the European Court of Human Rights (ECtHR) ruled in the case of Parmak & Bakir v Turkey that the Turkish judiciary’s interpretation of the offence of membership of an armed terrorist organization violated Article 7 of the European Convention on Human Rights, being the absolute right to no punishment without law. (For details see: here)

In December 2020, the Grand Chamber of the European Court of Human Rights established that Turkey’s anti-terror provision (Article 314 of the Turkish Penal Court) was not foreseeable (Selahattin Demirtas v. Turkey (2)) The foreseeability is one of criteria that the ECtHR applies while assessing the quality of a certain law used by a state party to justify its intervention into a right or freedom.

echr-demirtas_51661720

ECtHR’s decisions about post-coup attempt prosecutions

In the case of Acar and Others v. Turkey where the applicants were judges and prosecutors detained after the coup attempt, the ECtHR noted that their detention was based solely on an administrative measure taken by the Council of Judges and Prosecutors for their suspension from office or the revocation of their authorities, and/or on information indicating their use of the ByLock messaging app. The court then concluded that neither an administrative measure about the applicants nor using the ByLock messaging app could justify their pretrial detention.

In the case of Nazli Ilicak, a journalist who used to work at Gülen-linked media outlets and was jailed after the coup attempt, the ECtHR first notes that the media outlets which were shut down and dissolved under the 2016-2018 state of emergency were completely legal at the material time and that working in those organizations and being paid by them thus cannot itself be a criminal offense. The court also found that wiretapped phone conversations which show that the applicant had spoken with persons who were subsequently the subject of criminal proceedings cannot, in the absence of any incriminating evidence as to their content, be regarded as plausible grounds for suspecting the applicant of having committed the criminal offenses of which she was accused.

In the case of lawyer Taner Kilic, who was the then-chairperson of Amnesty International’s Turkey branch, the ECtHR underlined that he was detained by a magistrate judge with reference to evidence, namely a report establishing that the encrypted messaging app ByLock had been downloaded onto the applicant’s phone and that this application had been used by him; his subscriptions to certain publications, such as the Zaman newspaper; the fact that the applicant’s sister was married to the newspaper’s editor; the attendance of his children at schools that were closed by decree-laws; and accounts opened at Bank Asya. The court then concludes his subscription to a legal publication at the material time; his sister’s marital relationship with the head of such a publication; and the fact that his children attended schools that were legally run at the material time but which were subsequently closed down by decree-laws; and being a customer of Bank Asya, which was also a legal bank at the material time, cannot reasonably be regarded as constituting a body of evidence showing that the applicant belonged to an illegal organization.

With regard to the allegation that he used ByLock, the court refers to its Akgün judgment, where it concluded that, in principle, the mere fact of downloading or using an encrypted means of communication or resorting to any other form of protection of the private nature of the messages exchanged cannot in itself constitute an element capable of convincing an objective observer that illegal or criminal activity was involved. The rights court, however, further undermines the Turkish judiciary’s posture on ByLock by concluding that the police report that was used to justify the allegation that the applicant had used the ByLock app cannot be accepted as capable of proving such an allegation as it did not include the underlying data or any information on how those data were established.

In the case Yasin Ozdemir v. Turkey, the ECtHR found that the applicant’s social media posts in favor of the Gülen movement and its leader Fethullah Gülen dated 2015 cannot constitute the offense of praising crime and criminals as at the material time no members of the Gülen movement had been convicted with the final effect of being leaders or members of an illegal or terrorist organization. By reaching this conclusion, the court states that conduct prior to the Court of Cassation’s judgment dated 26/09/2017 that designated the Gülen movement a terrorist organization cannot be retrospectively criminalized.

In the cases of Alparslan Altan, Hakan Bas, Turan and Others and Acar and Others, which concerned the pretrial detention of over 500 judges and prosecutors including those from the Constitutional Court and the Supreme Court of Appeals, the ECtHR found that the pretrial detention of the applicants was unlawful and also violated the judicial protection provided to judges and prosecutors necessary to safeguard the independent exercise of their functions.

This quote is taken from the opinion titled  ‘ECtHR, UN bodies debunk Turkey’s post-coup prosecutions one by one.'[7]

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. (AY)

FOOTNOTES:
[1] Armed Organisation Article 314 (1) Any person who establishes or commands an armed organisation with the purpose of committing the offences listed in parts four and five of this chapter, shall be sentenced to a penalty of imprisonment for a term of ten to fifteen years.
[2] Armed Organisation Article 314 (2) Any person who becomes a member of the organisation defined in paragraph one shall be sentenced to a penalty of imprisonment for a term of five to ten years. (3) Other provisions relating to the forming of an organisation in order to commit offences shall also be applicable to this offence.
[3] CDL-AD(2016)002-e Opinion on articles 216, 299, 301 and 314 of the Penal Code of Turkey http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)002-e
In its judgment E. 2006/10-253 K. 2007/80 of 3 April 2007, the General Criminal Board of the Court of Cassation made a definition: The group has to have at least three members; there should be a tight or loose hierarchical connection between the members of the group, the members should have a common intention to commit crimes (even though no crime has yet been committed); the group has to present continuity in time; and the structure of the group, the number of its members, tools and equipment at the disposal of the group should be sufficient/appropriate for the commission of the envisaged crimes.
[4] https://rm.coe.int/third-party-intervention-10-cases-v-turkey-on-freedom-of-expression-an/168075f48f
[5] In clear violation of the Turkish Constitution and the ECHR, the Turkish government is using membership in duly authorized and officially registered institutions as pretexts to arrest and prosecute people although such membership is not defined as a crime in the law at all. For example, the private schools, cram schools, Bank Asya, union organizations, professional associations, charity organizations, foundations, media outlets and others that were founded by businessmen and professionals who were believed to be linked to the Gülen movement were declared terrorist entities overnight in Turkey after the failed coup of July 15, 2016. By extension, the government claimed, employees, members, volunteers and those who have sort of connections to these entities were deemed as terrorists. Stockholm Center for Freedom https://stockholmcf.org/wp-content/uploads/2017/09/Turkeys-Contempt-for-The-Rule-of-Law.pdf
[6] The Court further observes that the applicant was given a prison sentence of six years and three months under Articles 220 § 7 and 314 § 2 of the Criminal Code. The length of his prison sentence was subsequently reduced to five years, two months and fifteen days and the applicant served his sentence. The Court notes that when demonstrators, such as the applicant, face the charge of membership of an illegal armed organisation, they risk an additional sentence of between five and ten years in prison, a sanction which is strikingly severe and grossly disproportionate to their conduct. The Court finds therefore that Article 220 § 7 of the Criminal Code, as applied in the instant case, would inevitably have a particularly chilling effect on the exercise of the rights to freedom of expression and freedom of assembly. Moreover, the application of the provision at issue was not only likely to deter those who were found criminally liable from exercising their rights under Articles 10 and 11 of the Convention in the future, but also had a great deal of potential to deter other members of the public from attending demonstrations and, more generally, from participating in open political debate (see, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, § 99, 11 February 2016; Süleyman Çelebi and Others v. Turkey, nos. 37273/10 and 17 others, § 134, 24 May 2016; Kasparov and Others v. Russia (no. 2), no. 51988/07, § 32, 13 December 2016; and Işıkırık, cited above, § 69).
In the light of the aforementioned considerations, the Court concludes that Article 220 § 7 of the Criminal Code was not “foreseeable” in its application since it did not afford the applicant the legal protection against arbitrary interference with his right under Article 11 of the Convention (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 67, ECHR 2012, and Işıkırık, cited above, § 70). Hence, the interference resulting from the application of Article 220 § 7 was not prescribed by law. 

[7] [OPINION] ECtHR, UN bodies debunk Turkey’s post-coup prosecutions one by one, 



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