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The Turkish judiciary, abuse of anti-terror laws, attacks on lawyers, transnational repression campaign

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Introduction*

The courts of no other country have considered more requests made by Erdogan’s Turkey for the extradition of members of the Gulen Movement than those of the UK. The Secretary of State for the Home Department has so far referred 6 requests to the UK courts concerning 6 different individuals all of whom the Turkish government had been accusing of membership in the Gulen Movement which it proscribed in late 2016 following the failed coup attempt of July 2016. All of the 6 applications were eventually dismissed by the first-degree court and the High Court after Turkey appealed against the first 4 of them for being politically motivated as well as due to conditions in Turkish prisons.

The Defence Extradition Lawyers’ Forum (DELF) has therefore dedicated a whole session in its annual conference to Turkish extradition requests. The Arrested Lawyers Initiative was invited to the conference as Turkish law experts for a general overview of the human rights situation in Turkey as well as Turkey’s systematic targeting of the members of the Gülen Movement by way of abusing international mechanisms created to tackle crime.

Packing the Judiciary / Court Packing

Since the failed coup of July dismissals, arrests and imprisonments are being carried out almost on an industrial scale leaving millions of Turkish citizens directly affected. We wish to shed light on how a well-calculated and meticulously implemented scheme is behind all of that.

HSK, The Council of Judges and Prosecutors, is the governing body of the judiciary with significant powers in the functioning of the judiciary on such matters as judicial appointments, promotions as well as disciplinary matters. It is the linchpin of the Turkish legal system and “when its independence and impartiality are jeopardised so are the independence and impartiality of the Turkish judiciary as a whole”.

It was therefore one of the first institutions Erdogan targeted when a criminal investigation implicated in December of 2013 his son of corruption through a series of legislation to first hinder and then to kill the said investigation off.  Erdogan, then the prime minister, put all of his weight behind a draft of legislation by which he sought to bring the HSK under his control.

The legislation amended Law No. 6087 on HSK, in such a way that the justice minister’s power on the functioning of HSK was increased while the autonomy of HSK diminished. Amendment also included a provisional article authorising the minister of justice to “reorganize” all the HSYK staff members with the exception of elected members, whose status was constitutionally preserved. Provisional Article 4 provided that “with the entry into force of the law, the positions of the Secretary-General, Deputy Secretaries, the President of the Board of Inspectors and Vice Presidents, High Council inspectors, rapporteur judges and all the administrative personnel shall be terminated.” Thus, the terms of office of all the existing HSYK administrative staff were terminated and they were replaced with new appointments that were quickly carried out to prevent any possible review of the act by the Constitutional Court. It also meant that the justice minister would be able to appoint the head of the disciplinary board as well as its investigators. As a result, the government had the power to reshuffle the HSK and punish such members who did not support the government. The Constitutional Court naturally found the amendments unconstitutional but as its decisions did not have a retrospective effect the government had already achieved what it wanted.

While the 2014 amendments served their purpose and all criminal investigations started against Erdogan’s son and some of his cabinet ministers were dropped, it was not until after the failed coup of July 2016 that Erdogan would be able to create “his own HSK”.

The April 2017 referendum which saw Turkey adopt a presidential system also contained proposals to change the structure of the HSK. Following the referendum, the justice minister became the head of HSK. The number of HSK members was brought down to 13 from 21 which meant a smaller and more manageable HSK. The new constitutional provisions were in complete contrast to the amendments passed in the 2010 referendum. The number of members of the Judicial Council was reduced to 13 from 21 (Article 159 of the Constitution). The designation of these 13 members were to be as follows: Four members were to be directly selected by the president from among senior judges. Seven members were to be appointed by the parliament. The remaining two members would be the minister of justice himself and his deputy. The constitutional provisions meant the members of the judiciary would have no direct vote in electing the HSK members through a direct election, a right they previously enjoyed.  Erdogan finally gained complete control of the HSK and consequently the judiciary.

On the other hand, Erdogan has also paid special attention to the Constitutional Court and the Turkish Court Cessation as part of his quest to control the judiciary and to prevent it from posing a threat to his plans.

The vice president and another member of the Constitutional Court were arrested immediately after the coup attempt and placed in solitary confinement. That sent a clear signal to the rest of the members of the Court who appear to have received Erdogan’s message. Erdogan have also managed to change the composition and the way in which members of the Constitutional Court are appointed. As a result, all of the current 15 members of the court have been appointed either by Erdogan, or Abdullah Gul, the former president and one of the founders of AKP, or by the parliament. To put all that into perspective, the court will soon be delivering a verdict on the closure of HDP, the Kurdish opposition party, a decision which will certainly have far reaching ramifications as to both the future of Erdogan and Turkey as a nation, as the Kurdish vote is likely to determine the outcome of the election. Erdogan has also tried to control the Court by a number of appointments. The appointment of Istanbul Chief Public prosecutor Irfan Fidan, responsible for criminal investigations of high-profile individuals such as Osman Kavala, as a member of the Constitutional Court is quite remarkable. As judges of the court may only be appointed from amongst members of the Court of Cassation, Irfan Fidan was first made a member of the Court of Cessation and without working a day in the Court of Cassation, he was appointed to the Constitutional Court. Erdogan’s intimidation and reshaping of the Constitutional Court proved quite useful for his own purposes. When Turkey ignored a 2019 ECtHR decision which ordered the immediate release of a number of judges on the grounds of their detention being unlawful, The Constitutional Court said that it was in a better position to judge the legality and ruled that the ECtHR order could be ignored.

Related: AKP’s longstanding court packing strategy

Following the failed coup, some 190 judges of the Court of Cassation and the Council of State were immediately arrested. The way in which they were arrested sent shockwaves to the whole of the judiciary.  The president of the Council of State asked the members of the court to meet at the courthouse to issue a public statement condemning the coup attempt. When the judges arrived, the police were already there with a list of judges to be arrested. They started checking the identity of each and every judge against the list and arrested those who were on that list. They were handcuffed while still wearing their robes. On the other hand, Erdogan has always been keen to promote those who have been of some sort of use to him in the past. In 2003, Former president Ismail Rustu Cirit was the judge of a small Istanbul criminal court when he found himself presiding over a case where Erdogan was one of the defendants who was being accused of misappropriating public funds during his term as the mayor of Istanbul.  Despite damning evidence against him, Cirit acquitted Erdogan. He was then appointed to the Court of Cassation, then became the president of one of the chambers and was finally appointed as the president of the Court in 2015.

In order to dilute the authority of individual members of the Court of Cassation and the Council of State, in the last ten years, these two courts have been reorganised several times and, in one instance, all of the judges of the court were removed, and new judges were assigned.

Summary dismissals of judges and prosecutors[1]

Perhaps the most devastating step Erdogan has so far taken to establish his one-man rule was the summary dismissal of thousands of members of the judiciary and their subsequent imprisonment.

On the night of July 15, 2016, when the identity of the soldiers and coup plotters who actually participated in the coup attempt had yet to be determined, the HSYK convened to suspend 2,745 judges and prosecutors, including its own members. The HSYK’s suspension decision paved the way for the subsequent arrest warrants to be issued by prosecutors for members of the judiciary. It is simply inexplicable how the HSYK and prosecutors gathered sufficient evidence, or any evidence at all, of the involvement of supposedly 2,745 judges and prosecutors in the coup attempt within a matter of hours.

When the government declared a state of emergency it started to run the country with executive emergency law decrees. As a result, thousands of members of the judiciary were dismissed with a single decree. As of July 14, 2020, 4,145 judges and prosecutors had been dismissed from office. Among the dismissed and arrested judges were two Constitutional Court judges, 140 Supreme Court of Appeals judges and 48 Council of State judges. The five regular and four reserve members of the HSYK who were not a member of the YBP, a pro-government judicial organisation, were placed in pre-trial detention and were later arrested on grounds of suspicion of membership in an armed organisation. On August 24, 2016, the HSYK summarily dismissed its own members as well as other members of the judiciary without evidence. Those who were dismissed were hurriedly replaced, often by Erdogan loyalists, some of them barely out of college. The average level of experience of the country’s entire force of 14,000 judges was just two and a half years of practising law.  In the last five years, the AKP- MHP alliance appointed more than 13,000 new judges and prosecutors.

Lawyers

Since 2016’s coup attempt, there has been a relentless campaign of arrests which has targeted fellow lawyers across the country. In 77 of Turkey’s 81 provinces, lawyers have been detained, prosecuted, and convicted due to alleged terror-linked offences. The report, titled The Crackdown, reveals that more than 1,600 lawyers have been arrested and prosecuted while 615 lawyers have been remanded to pretrial detention. Subsequently, 474 lawyers have been sentenced to a total of 2,966 years in prison on the grounds of membership in an armed terrorist organization (Art. 314 of Penal Code) or of spreading terrorist propaganda.[2]

Related: The Crackdown

Abuse of anti-terror laws[3]

On 20th February 2021, Minister of the Interior, Süleyman Soylu stated that 1.5 million people have been subjected to a criminal investigation, more than 600,000 of them have been arrested and more than 300,000 of them have been convicted. With Erdogan’s crackdown on the Gulen Movement through abuse of anti-terror laws, there has been a dramatic increase in the number of those who have been indicted for terrorism. In 2013 the number of those indicted was 9000, which in itself is quite a high number. Following the failed coup, the number first rose to 147,000 individuals in the year 2017 and then to 115,000 the following year.

What were the legal grounds for that?[4]

When we talk about Turkey’s anti-terrorism laws we actually refer to two separate acts: the Turkish Penal Code (5237) (“TPC”) and Anti-Terrorism Law (3713). Although quite a few of the Anti-Terrorism Law have been rescinded, in infamous Article 5 which orders the aggravation of sentences by half where the offence committed is a terrorism offence is still in force.

While Article 314/1 of the Turkish Penal Code criminalises the establishment and/or commanding of an armed terrorist organisation, subsection 2 (Article 314/2) [2] criminalises membership in an armed organisation. Under the Turkish Penal Code, these two offences carry a penalty of 7.5 to 22.5 years imprisonment.

The said articles obviously do not specify the criteria for an individual to be considered a member of a terrorist organisation.  These criteria have therefore been left to be established by the courts. The Court of Cessation in its various decisions held them to be ‘continuity, diversity, and intensity in one’s actions and intentionally being part of the “hierarchical structure of the terrorist organisation”.

Related: Third Party Intervention by FIDU on the abusive use of Turkish anti-terror provision

European Court of Human Rights

In its Işıkırık judgment, the ECHR found that when Article  314 was applied in conjunction with Article 220/6 (A person who commits an offence on behalf of an organisation without being a member of the organisation shall also be punished for the offence of membership of the organisation), the courts did not have to examine these criteria, but rather interpret these criteria in an overly broad manner and impose sentences and that such a broad drafting and interpretation of the wording of the Article, and such a broad application by the courts, did not provide adequate protection of persons against arbitrary interference by public authorities. The Court’s decision is in line with the Venice Commission’s Opinion No. 831/2015 of 15 March 2016, in which the Commission pointed out problems in terms of the principle of legality on the same grounds.

On the other hand, foreseeability is one of the 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. In Selahattin Demirtas v. Turkey (2), the Grand Chamber of the European Court of Human Rights established that Turkey’s anti-terror provision (Article 314 of the Turkish Penal Court) under which Mr Demirtas was arrested and sentenced was not foreseeable.

Under Turkish law, any person who commits an offence on behalf of an organisation, without actually being a member of that organisation, shall also be punished for the offence of being a member of that organisation.

The Turkish courts have already convicted those who sang songs at the funeral of PKK members as well as journalists who had been reporting torture and corruption.

On the other hand, according to the Turkish courts, one such act can assist more than one organisation. For instance, Osman Kavala and Can Dundar have both been convicted or on a trial for assisting 3 separate terrorist organisations namely PKK, FETO and DHKPC. The justice minister coined a phrase calling it “assisting a cocktail terrorist organisation.”

In the case of Selahattin Demirtas v. Turkey (2), the Grand Chamber of the European Court of Human Rights established that Turkey’s anti-terror provision (Article 314 of the Turkish Penal Court) under which Mr Demirtas was arrested and sentenced was not foreseeable.[5]

The foreseeability is one of the 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.

Then there is the issue of proscription of the Gulen Movement. Naturally, one may not be accused of being a member of a terrorist organisation if at the time of the alleged offence there was no terrorist organisation. Almost all of the millions of people who have been accused of being a member of the Gulen Movement are being done so for acts they have allegedly committed long before the Turkish courts proscribed the Gulen Movement in 2016.

Torture

The very first Emergency Decree (no. 667, Art. 9 § 1) adopted after the declaration of the state of emergency following the coup attempt of 2016’s July stipulated that “legal, administrative, financial and criminal liabilities shall not arise in respect of those persons who have adopted decisions and who fulfil their duties within the scope of this Decree-Law”.  

Emergency Decree no. 668 (Art. 37) has further expanded this principle of impunity, specifying that there will be no criminal, legal, administrative, or financial responsibility for those making decisions, implementing actions or measures, or assuming duties as per judiciary or administrative measures for suppressing coup attempts or terror incidents, as well as individuals taking decisions or fulfilling duties as per the State of Emergency Executive Decrees.

By Emergency Decree no. 696 (Art. 121), the impunity provided to public servants under Emergency Decree nos. 667-668, was also extended to civilians. More precisely, it was stipulated that those civilians acting to suppress the coup attempt of 15/7/2016, and the ensuing events, will have no legal, administrative, financial, or criminal responsibility.    What is more, all these three decrees were approved by the Turkish Parliament and have become ordinary laws (Law Nos. 6749, 6755 and 7079).

The report published by the Italian Federation for Human Rights, The Arrested Lawyers Initiative, and the Human Rights Defenders e.V, concludes that “in Turkey impunity is not an aberration, but, rather, it is the norm when a rights violation is committed against individuals by state officials.”[6] According to the report, Turkey’s impunity policy has three pillars, which are:

  • the moral legitimization of the unlawful acts of state officials,
  • the protection provided for perpetrators by administrative and judicial authorities,
  • the legal regulations either constitute obstacles for investigation and prosecution or provide for explicit impunity for perpetrators.

Since 2016, torture and ill-treatment have been widespread across Turkey. Those accused of terrorism-related charges, particularly perceived Gülenists and Kurdish people are at risk. Reports of the UN and the Council of Europe experts, the European Commission, Western countries, and human rights NGOs manifest systemic torture and ill-treatment.[7]

Related: Joint Report | Impunity: An Unchanging Rule in Turkey

Transnational repression[8]

INTERPOL diffusions and passport cancellations

Immediately after the 15th of July passports of some 500,000 Gülenists were cancelled by the Turkish government including family members of suspected Gülenists. Couples had to divorce in order to get passports.  60,000 passports were reported by the government as lost or stolen. Interpol suspended Turkey’s authority to enter data into the SLTD database for its blatant abuse of this transnational tool for tackling serious crime.

Interpol has so far refused some 800 red notice requests that Turkey submitted.  Turkey, therefore, had to devise a new way to abuse Interpol mechanisms. Turkey has recently been submitting diffusion requests for unpolitical offences such as sexual offences or money laundering. When a person returns to Turkey, those charges are quickly dropped, and he is charged with membership in the Gulen Movement.

Extradition requests[9]

Turkey has since 2016 sent at least 1133 extradition requests to 110 countries. Of those, 202 have been sent to the United States and 361 to EU countries. The addressee governments however have chosen not to refer Turkey’s requests to their respective judicial authorities due to their failure to pass preliminary reviews either on probable cause or for being prima facie political. Yet in the cases in which a referral was made, their courts have without exception dismissed Turkey’s extradition requests.

Related: 

Kidnappings / Enforced Disappearances

121 people from 28 countries including, Kosova, Moldova, Kyrgyzstan and Kenya. In four separate cases that were filed by the victims of similar international abductions, the UN human rights bodies found both Turkey and its co-conspirator country breached human rights. UN Working group on arbitrary detention and UH Human rights committee.

Abuse of the mechanism on the prevention of financing of terrorism[10]

Two 2021 cabinet decrees have sanctioned certain Gülenists who live abroad for financing terrorism. Those 670 individuals sanctioned include vocal critics of Erdogan such as freelance journalists, human rights defenders, academics, authors, teachers, and lawyers most of whom have been granted asylum in the west due to their politically-motivated persecution by the Turkish government. For instance, the second Decree, dated 20th December 2021, targeted 34 journalists who are members of the International Journalists’ Association, based in Brussels. Of those 34 journalists, 22 are still practising their profession as freelance journalists. Targeted journalists currently live in the USA, Germany, The Netherlands. The list also contains a number of Turkish businessmen whose Turkish assets have already been confiscated and who are now having to live off state benefits in the countries they have sought refuge.

The Turkish government has been threatening international financial organisations to stop providing services to the sanctioned Gülenist with stopping their operations in Turkey.

* Intervention made by our London representative at the annual conference of defence extradition lawyers forum on 23 September 2022

Practical Sources and Footnotes

Transnational Repression:

Jurisprudence and Opinions:

ECtHR and Venice Commission

  • Venice Commission Opinion on Articles 216, 299, 301 and 314 of The Penal Code Of Turkey (CDL-AD(2016)002).
  • Selahattin Demirtaş Turkey (No. 2), Application no. 14305/17 http://hudoc.echr.coe.int/fre?i=001-207173
  • İmret Turkey(No. 2), Application no. 57316/10
  • Işikirik v. Turkey, Application no. 41226/09
  • Parmak& Bakir Turkey, Applications nos. 22429/07 and 25195/07

UN Human Rights Committee: İsmet Özçelik et. al. , CCPR/C/125/D/2980/2017

Working Group on Arbitrary Detention:

  • Osman Karaca v. Cambodia and Turkey, A/HRC/WGAD/2020/84
  • Levent Kart v. Turkey, A/HRC/WGAD/2020/66
  • Nermin Yasar v. Turkey, A/HRC/WGAD/2020/74
  • Mestan Yayman v. Turkey, A/HRC/WGAD/2018/42
  • Melike Göksan & Mehmet Fatih Göksan v. Turkey, A/HRC/WGAD/2019/53
  • Kahraman Demirez et. al v. Turkey and Kosovo, A/HRC/WGAD/2020/47
  • Arif Komiş al v. Malaysia and Turkey, A/HRC/WGAD/2020/51
  • Akif Oruç v. Turkey, A/HRC/WGAD/2020/29
  • Faruk Serdar Köse v. Turkey, A/HRC/WGAD/2020/30
  • Ercan Demir v. Turkey, A/HRC/WGAD/2019/79

Other Sources:

Footnotes:

[1] https://stockholmcf.org/turkeys-judicial-council-guarantor-or-annihilator-of-judicial-independence/

[2] https://arrestedlawyers.org/2021/12/10/new-report-the-crackdown-against-lawyers-in-turkey/

[3] https://arrestedlawyers.org/wp-content/uploads/2021/10/third-party-intervention-by-fidu-logo-12.10.2021.pdf

[4] https://arrestedlawyers.org/2022/08/09/turkey-abuses-anti-terror-laws-to-suppress-critics/

[5] https://arrestedlawyers.org/2020/12/22/tr-anti-terror-law-is-not-foreseeable-ecthr/

[6] https://arrestedlawyers.org/2020/06/19/joint-report-impunity-an-unchanging-rule-in-turkey/

[7] Report of the Special Rapporteur on Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment on his mission to Turkey, Distribution date: 18 December 2017,

https://www.ohchr.org/en/documents/country-reports/ahrc3750add1-report-special-rapporteur-torture-and-other-cruel-inhuman-or;

https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/362/52/PDF/G1736252.pdf?OpenElement

[7]Report of the Office of the United Nations High Commissioner for Human Rights, Summary of Stakeholders’ submissions on Turkey, 

https://undocs.org/A/HRC/WG.6/35/TUR/3, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/322/40/PDF/G1932240.pdf?OpenElement

Office of the United Nations High Commissioner for Human Rights Report on the impact of the state of emergency on human rights in Turkey, including an update on the South-East January – December 2017

https://www.ohchr.org/Documents/Countries/TR/2018-03-19_Second_OHCHR_Turkey_Report.pdf

Home Office, Country Policy and Information Note Turkey: Gülenist movement; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1052283/TUR_CPIN_G%C3%BClenist_movement.pdf

Regjeringen. GI-15/2017 – Instruks om praktisering av utlendingsloven § 28 – asylsøkere som anfører risiko for forfølgelse på grunn av (tillagt) tilknytning til Gülen-nettverket. https://www.regjeringen.no/no/dokumenter/gi-152017–instruks-om-praktisering-av-utlendingsloven–28–asylsokere-som-anforer-risiko-for-forfolgelse-pa-grunn-av-tillagt-tilknytning-til-gulen-nettverket/id2575439/

[8] https://www.londonadvocacy.org/weaponization-of-anti-terror-financing-measures/

[9] https://www.londonadvocacy.org/wp-content/uploads/2022/09/Extradition-Report_9.9.2022.pdf

[10] https://www.londonadvocacy.org/weaponization-of-anti-terror-financing-measures/

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