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The stories behind Turkey’s crackdown on expression
Judicial harassment: the practice by state authorities of repeatedly filing claims or charges under civil, criminal, and/or administrative law against individuals, often journalists and human rights defenders, in order to intimidate or silence them by entangling them in lengthy legal processes which disrupt their lives and prevent them from carrying out their work.
Freedom of expression has been under attack in Turkey for years, with a drastic decline since 2013. The Turkish state’s reaction to the Gezi Park protests in 2013 was a turning point in relations between civil society and the authorities. The conflict in the South East of the country and the collapse of the peace negotiations in 2015 also led to serious consequences for Kurdish journalists who face prosecution for “terrorism propaganda” without proper application of international standards on the right to freedom of expression. In addition, hundreds of academics were dismissed from their posts and banned from public service for signing a petition calling for a return to the peace process in January 2016.
The July 2016 coup attempt and the subsequent state of emergency allowed the government to impose far greater restrictions on the judiciary, the media, civil society and academia. At least 170 media outlets have been closed down over claims they spread “terrorist propaganda”. Scores of journalists have been jailed on coup or terrorism charges with high profile “show trials” of journalists, demonstrating for all the dangers of openly criticising the authorities. Constitutional changes in 2017 cemented executive control over the judiciary after a quarter of judges and prosecutors had already been dismissed in the aftermath of the coup attempt. Since then the Turkish authorities have been behaving in an increasingly authoritarian manner, seeking to silence those who criticise state policy on issues like Covid-19, and gain increased powers to censor online speech.
According to official government sources, those prosecuted are not on trial for their expression or journalistic work. Jailed journalists, human rights defenders, politicians are in fact all “terrorists”. Calls from the international community for Turkey to ensure that no one is prosecuted on the basis of their expression have been rejected as interference in independent judicial processes. By monitoring trials, drafting expert legal opinions on cases and sharing this information with the international community, ARTICLE 19 aims to dismantle this narrative.
Those who face prosecution for their freedom of expression in Turkey, often through multiple cases in a pattern of judicial harassment, too often get lost behind the statistics. Here you can read more about the individuals behind these cases, and the details of their struggles against an unjust judicial system and repressive legal framework.
Ahmet Altan is a novelist and journalist, who spent more than four years in prison. He was released in April 2021.
Selahattin Demirtaş is a Kurdish politician, the former co-chair of the HDP (Peoples’ Democratic Party), who has been imprisoned since November 2016.
İsminaz Temel is the editor of Etkin News Agency (ETHA), who spent 16 months in pre-trial detention between October 2017 and February 2019.
Turkey’s legal framework
Turkey has a number of national legal provisions which are in violation of international standards on freedom of expression, and its obligations under international human rights treaties, including the International Covenant on Civil and Political Rights, and the European Convention on Human Rights. According to Article 90 of the Turkish Constitution: “in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail”. Despite this, certain legal provisions in the domestic law are regularly used to target journalists, writers, and human rights defenders. Compliance with higher court verdicts, including those of the Constitutional Court and the European Court of Human Rights (the ECtHR), is also inconsistent.
In order to comply with international human rights laws, which require Turkey to guarantee the right to freedom of expression, any restrictions on this right must meet a strict three part test:
1. Provided by law – the restriction must be based on a precisely drafted law and be accessible, to enable individuals to regulate their conduct accordingly;
2. In pursuit of a legitimate aim – meaning the restriction must have the purpose of protecting the rights or reputations of others, or protecting public health or morals, national security, or public order; and
3. Necessary and proportionate – the measure must be necessary in a democratic society, and be the least restrictive means of achieving a legitimate aim.
ARTICLE 19 has analysed some of the most frequently used provisions in trials against civil society in Turkey and their compatibility to international human rights law and standards.This list will be regularly updated to include more legal provisions and to reflect changes in Turkish law and and practice.
The Turkish Constitution
Article 26 on freedom of expression
- Article 26 on freedom of expression
The right to freedom of opinion and expression is guaranteed by Article 26 of the Turkish Constitution. 16 Through Act no. 4709, on 3 October 2001, Parliament amended Article 26 to permit restrictions, including vague concepts such as “safeguarding the basic characteristics of the Republic”, “preventing crime”, and “punishing offenders” – which are not recognised as legitimate aims for limiting expression under Article 19(3) of the ICCPR. 17 Furthermore, there are no requirements that any such restrictions necessary and be proportionate measures to achieve those aims, only requiring that they be “prescribed by law”. It further broadly restricts the dissemination of information classified as a “state secret”, without providing for public interest exemptions.
The Penal Code
Article 215 – Praising an Offence or Offender
This article reads: “Anyone who publicly praises an offence that was committed, or a person on account of an offence he/she committed, shall be sentenced to imprisonment for a term of up to two years, provided that there emerges an imminent and clear danger to the public order”.
In our view, Article 215 plainly fails to meet the legality requirement under Article 10 of the European Convention of Human Rights. In particular, a series of terms are excessively vague or undefined, such as “praising” “offence” “emerges” and “public order”. As such, this provision is clearly open to abuse and prevents individuals from foreseeing when their acts of expression may be criminalised under Turkish law.
Furthermore, the provisions fail to satisfy the third requirement of the permissible limitations test, namely that laws must be strictly necessary and proportionate to the aim pursued. In this respect, we note that Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles) – which have been endorsed by the UN special mandate on freedom of expression – clearly stipulates the following elements that such laws must contain, in order to satisfy the principles of necessity and proportionality:
● The act is intended to incite imminent violence;
● The act is likely to incite such violence; and
● There is a direct and immediate connection between the speech and the likelihood or occurrence of such violence.
Although Article 215 of the Penal Code requires a connection between the giving of public praise and an “explicit and imminent danger to the public order”, it still lacks a requirement that the praise was intended to incite violence. International law is clear that laws prohibiting incitement to terrorism or any form of violence will not be compliant with human rights standards unless the law stipulates that the relevant conduct must have been clearly intended to directly incite such conduct. Given the potentially broad interpretation of the term “praising”, and the lack of a requirement to demonstrate intent, Article 215 can be easily misconstrued to criminalise expression which only conveys information from or about an offence or offender, contrary to Principle 8 of the Johannesburg Principles.
This analysis was developed based on the ARTICLE 19 and TLSP joint Rule 9.2 submission: https://www.article19.org/wp-content/uploads/2020/03/Rule-9-Submission-Oner-and-Turk-ARTICLE-19-and-TLSP-FINAL.pdf
Article 220(6), 220(7) and Article 314(2) – Membership of a terrorist organisation
Articles 220(6) and (7) and 314(2) of the Penal code are frequently used in combination in a way that violates international standards on freedom of expression and enables the targeting of journalists and others.
Article 220(6) states that anyone who commits a crime “on behalf of an (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.” Article 220(7) provides that “any person who knowingly and willingly helps an organized criminal group without taking part within the hierarchical structure of the group” will also be punished as a member of that organisation. Article 314(2) criminalises membership of a terrorist organisation, with a prison sentence of five to ten years. Amendments to the Penal Code in January 2020 mean that the sentence for those sentenced under articles 220(7) and 314(2) can receive a reduction of two thirds in their sentence, while those sentenced under 220(6) can receive a reduction of half the sentence, however these amendments have not addressed the problems with the offences and how they are used.
Articles 220(6) and (7) are exceedingly vague. In particular, Article 220(6) fails to specify what “offence” must be committed on behalf of an “organisation” for the offence to be constituted. Given the number of offences in the Penal Code, the scope of this provision is staggering. This is very concerning given that the Penal Code contains numerous provisions in breach of international standards on freedom of expression such as Article 214 (provocation to commit an offence) or Article 215 (praising an offence or offender). As a result, Article 220(6) may be used to criminalise the legitimate coverage of news articles or other statements on matters of public interest, including terrorism.
For Article 220(7), the Venice Commission has stated that the wording of the amended article could lead to “abusive application in practice, since a form of expression considered as being in support of an organisation, may be sanctioned under Article 220(7), instead of Article 220(6), in order to sentence the defendants as if they were members of an armed organisation under Article 314, although their organic relationship with an armed organisation is not established”. In other words, any act of expression that may be deemed to coincide or be somehow compatible with the purpose and ideology of a terrorist organisation under Turkish law is illegal. Article 220(7) suffers from a similar vagueness allowing it to be applied to various forms of expression.
The combined application of Article 220 and 314 is frequently used to target expression in Turkey. The European Court has noted that when Article 314 (membership of an armed organisation) is applied alone, the Turkish courts had to have regard to the “continuity, diversity and intensity” of the acts to demonstrate membership. However, with Article 220(7) there was no such requirement and yet individuals could be sentenced as if they were a member. In recent cases, the Turkish courts have not been applying those strict requirements to prove membership of an organisation under Article 314, where individuals have been found guilty of membership on extremely vague and circumstantial evidence. For those charged with ‘aiding an armed organisation’ the standard of evidence is poorer still, and frequently based entirely on the individual’s expression, including articles or columns they have written which do not incite violence or hatred, but merely express opinions critical of the government. In a number of cases, the domestic courts have convicted individuals of aiding an armed organisation or membership of an armed organisation merely for expressing opinions critical of the government, which had also been expressed by alleged members of the FETO/PDY organisation (“Fethullah Gülen Terrorist Organisation”, which the Turkish government accuses of orchestrating the coup attempt of 2016) or the PKK (Kurdistan Workers’ Party)
See ARTICLE 19 and TLSP joint Rule 9.2 submission: https://www.article19.org/wp-content/uploads/2020/03/Rule-9-submission-Isikirik-group-ARTICLE-19-and-TSLP.pdf
Article 299 – Insulting the President of the Republic
Article 299 provides that “any person who insults the President of the Republic shall be sentenced to a penalty of imprisonment for a term of one to four years. Where the offence is committed in public, the sentence to be imposed shall be increased by one sixth. The initiation of a prosecution for such offence shall be subject to the permission of the Minister of Justice.” In ARTICLE 19’s view, this provision plainly fails to meet the 3-part test under international law.
- The provisions of Article 299 do not meet the criterion of legality. In order for a norm to be characterised as “law” for the purpose of legitimately restricting the right to free expression, it needs to be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.” Article 299 does not specify what is meant by “insult.” This provides an opportunity for wide discretion to law enforcement authorities in the application of these provisions.
- Article 299 does not pursue a legitimate aim. Prohibitions of insult of heads of states and public officials in general – purely on account of their status – especially through criminal law, invert the fundamental principle in a democratic system that the government is subject to public scrutiny. Heads of states and public officials should tolerate more, not less, criticism than ordinary citizens. By choosing to serve the public, officials knowingly lay themselves open to scrutiny of their words and deeds by the media and the public at large. Moreover, vigorous debate about the functioning of heads of states is an important aspect of democracy.
- Even assuming that criminalisation of speech that insults a head of state is a legitimate aim, restrictions undertaken in pursuit of such an aim must still satisfy a proportionality test which assesses the severity of those restrictions against the necessity of sanctions. To be necessary, there must be a showing that a legitimate purpose cannot be reasonably achieved by less restrictive means. ARTICLE 19 asserts that criminal penalties in freedom of expression cases – in particular where political speech and “insult” are concerned – are rarely proportionate.
Article 309(1) – Violation of the Constitution
This provision provides that “any person who attempts to abolish, replace or prevent the implementation of, through force and violence, the constitutional order of the Republic of Turkey, shall be sentenced to a penalty of aggravated life imprisonment”. This article has been used against individuals in Turkey on the basis of their expression and is couched in overly broad terms. As such, it plainly fails to comply with the requirement that any restriction on freedom of expression must be “provided by law”. In particular, it is unclear what actus reus is involved in order to attempt to “abolish” or “replace” the constitutional order of Turkey. Moreover, it is unclear what “the constitutional order” of Turkey comprises of or what institutions should be abolished or replaced for the offence to be constituted.
More importantly, the provision fails to specify whether the use of “force or violence” includes the “instigation” of or “incitement” to violence. Most of the time, the article is used to prosecute individuals for their expression, and it is hard to see how speech can be equated with “force and violence” in the ordinary meaning of those terms. If the interpretation of ‘force and violence’ were stretched to include mere expression, we consider that such an interpretation would be arbitrary and, indeed, so broad as to be virtually meaningless. In any event, a sentence of aggravated life imprisonment is plainly disproportionate given the breadth of this provision.
Article 311(1) – Offence Against a Legislative Body
This provision provides that “any person who attempts, by use of force and violence, to abolish the Turkish Grand National Assembly, or to prevent in part or in full, the fulfilment of the duties of the Turkish Grand National Assembly, shall be sentenced to a penalty of aggravated life imprisonment”. In ARTICLE 19’s view, this provision suffers from the same shortcomings as Article 309(1). It is incredibly vague and as such fails the requirement of legality under Article 19(3) of the ICCPR and Article 10(2) of the ECHR.
Moreover, it is unclear what actus reus amounts to the “prevention” of the “fulfilment of the duties” of the Turkish Grand National Assembly. Whilst the use of the words “by use of force or violence” somewhat reduces the scope of the offence, the provision has been applied, for example in the Sahin Alpay case, to include speech within the ambit of this offence. If that analysis is correct, however, merely protesting in front of the Turkish Grand National Assembly could potentially be taken to “prevent” the Turkish Grand Assembly from carrying out its “duties” – insofar as such duties involve the passing of legislation. Indeed, in the absence of a definition of the Assembly’s duties, a wide range of similarly legitimate and innocuous actions could fall within its scope. For the same reasons as above, such an interpretation would make the provision wholly arbitrary and the proposed sentence of aggravated life imprisonment manifestly disproportionate given its breadth.
Article 312(1) – Offences against the Government
Article 312(1) provides that “any person attempting, by the use of force and violence, to abolish the government of the Turkish Republic, or to prevent in part or in full, the fulfilment of its duties, shall be sentenced to a penalty of aggravated life imprisonment”. Like the preceding offences, ARTICLE 19 considers that Article 312 (1) of the Penal Code fails to comply with the legality and proportionality requirements under Article 19(3) of the ICCPR and Article 10(2) of the ECHR. It is unclear what amounts to abolishing or preventing the government from carrying out its duties. The lack of definition of “use of force and violence” is concerning, and should, on any common-sense view, exclude reporting on matters of public interest. The applicable sentence under Article 312(1) is also disproportionate given the incredibly broad scope of this offence.
The Anti-Terrorism Law
Law no. 3713 allows an overly broad interpretation of the term ‘terrorism’, leading to the prosecution of journalists and others on the basis of their expression alone, which did not incite violence or hatred. In particular, Article 1 does not require that the acts committed amount to deadly or otherwise grave violence. This analysis is consistent with the comments made by UN Special Rapporteur Martin Scheinin in 2006 on this issue. He stated that “The Anti-Terror Act is drafted in a way that allows for an overly broad application of the term terrorism” since “the provision is applicable to any kind of act that entails “pressure, force and violence, terror, intimidation, oppression or threat” with “the aim to change the “political, legal, social, secular and economic system” of Turkey and the aim of “weakening … the authority of the State.” He went on to note that in Article 2 of Law no. 3713, which defines who is a terrorist offender, “there is no requirement that the person must have committed a serious violent crime.”
Article 7(2) – Disseminating terrorist propaganda
Article7(2) of Law no. 3713 reads: “Any person who disseminates propaganda in favour of a terrorist organisation, by justifying, praising or encouraging the use of methods constituting coercion, violence or threats, shall be liable to a term of imprisonment of one to five years” This article fails to define what amounts to “propaganda” or “justifying” “praising or “encouraging” the use of terrorist methods. This leaves those provisions open to being broadly applied to a range of actions not properly within the scope of the offence. Moreover, these articles fail to include the essential element of intent to incite violence, i.e. that the act of expression had some direct and imminent link to the violent act, which was intentional. In our view, this omission renders these provisions incompatible with the requirements of necessity and proportionality under Article 10 of the Convention and Article 19 of the ICCPR.
A further amendment to Article 7(2) in 2019, added the sentence: “Expressions of thought that do not exceed the limits of reporting or for the purpose of criticism shall not constitute a crime.” While this amendment appears to be intended to prevent the use of this law for the prosecution of journalists or others criticising the government, the wording is still far too broad and fails to define what the ‘limits of reporting’ are. Moreover, it also fails to address the issue of intent.
Article 6(2) and (4) – Publishing terrorist leaflets or declarations
Article 6 (2) and (4) reads as anyone who prints or publishes leaflets or declarations of terrorist organisations […] which justify, praise or incite the terrorist organisations’ methods containing violence, force or threat shall be sentenced to imprisonment for a term of one to three years. This article suffers the same flaws as Article 7(2), and is in breach of international free expression standards.
This analysis was drafted based on the ARTICLE 19 and TLSP joint Rule 9.2 submission. See the full text: https://www.article19.org/wp-content/uploads/2020/03/Rule-9-Submission-Oner-and-Turk-ARTICLE-19-and-TLSP-FINAL.pdf
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