Statement on freedom of expression in Turkey UPR pre-session, December 2014

1.     P24, with the support of ARTICLE 19, the Committee to Protect Journalists, English Pen, Freedom House, and Pen International, welcomes the opportunity to contribute to the second cycle of the Universal Periodic Review (UPR) of Turkey. This statement focuses on Turkey’s compliance with its international human rights obligations with respect to freedom of expression.

Executive Summary

2.     In 2010, the Turkish government accepted eight recommendations to bring its legislation and practice in line with international freedom of expression obligations. Regrettably, the government has made inadequate efforts to implement these recommendations, and the situation for freedom of expression has worsened in Turkey, particularly following the Gezi protests in 2013.

Plan of the Statement

3.     This statement examines the following key freedom of expression issues:

  • Legislative restrictions to freedom of expression;
  • The misuse of the Anti-Terror Law (TMK) and organised crime provisions within the Turkish Penal Code (TCK);
  • Attacks on freedom of expression, including political interference in media;
  • New restrictions on freedom of expression, including the National Intelligence Law No.6532);
  • Increasing restrictions on freedom of expression online.

4.     Two major developments since 2010 help us understand the current state of freedom of expression in Turkey. Firstly, there has been a shift in media ownership. The owners of big construction companies who had won substantial state contracts , , created a joint pool of funds to buy media companies, following then Prime Minister Tayyip Erdogan’s call for business leaders supportive of him to proactively buy out media houses. With the creation of ‘the pool media’ as it came to be called, the majority of broadcast and print media outlets came under the influence of the government. Secondly there has been a political shift towards a more authoritarian style of government.

As a result, criticism of the government has been criminalised, suppressed, censored and excluded from the media. The change in the political climate has led to extensive self-censorship across media-outlets.

Legislative Restrictions

5.     Legislative restrictions which had led to prosecutions and imprisonment remain intact with only minor improvements.

6.     During the period under review, Turkey adopted a series of judicial reform packages which aimed to harmonize domestic laws with EU norms. The Third, Fourth and Fifth Judicial Reform Packages passed between July 2012 and February 2014 removed some of the restrictive clauses of the Anti-Terror Law (TMK) and Turkish Penal Code (TCK). Commendable steps were also taken regarding terrorism and propaganda clauses and propaganda was deemed illegal only if it led to violent or threatening practices. The Fifth Package was the most substantial, removing Special Authority Courts and Prosecutors. Some writers and journalists were freed from jail as a result of the changes.  However, the removal of restrictions fell short of fully implementing the recommendations made in the first cycle of UPR, therefore TMK and TCK still contain numerous provisions that are overly broad and imprecise, allowing for abuse. Consequently, Turkey jailed more journalists than any other country in the world in 2012 and 2013. The numbers have substantially reduced, but some releases are conditional on not committing a similar offence again within three years. Such conditional releases encourage self-censorship.

7.     Banning of news coverage by orders of public prosecutors and courts is also of concern. News bans regarding politically and socially controversial issues are fast becoming the norm. Amongst the news bans of note are the following stories:

  • leaked conversations between the foreign minister, top brass and the head of Intelligence concerning a possible operation in Syria in 2013;
  • the Mousul Consulate Personnel being held hostage by Islamic State in 2014;
  • the corruption allegations involving four ministers in 2013;

Such news should be well covered by media so that the public can make an informed opinion. Such bans violate people’s right to information and freedom of speech. The practice of news bans continues.

8.     During the period under review there has been increasing intolerance of dissent. This is reflected in the hundreds of criminal and civil defamation cases against writers and journalists. The ruling by the ECHR’s that the use civil defamation laws to afford greater protection to public officials is a violation of Article 10 remains ignored.. Defamation laws are abused to scare and intimidate individuals. Media companies are intimidated by tax inspections and fines that may even exceed a billion US dollars. Dogan Group was the most influential media group with the highest circulation dailies amongst its titles. Dogan was not favoured by the AKP government and came under a tax investigation resulting in a fine of 1.2bn USD. . It is suspected that this was meant to be a not so subtle warning to all media groups and is push for even greater self-censorship.

9.     Article 301 of TCK criminalises insulting the Turkish Nation, Turkish State, the National Assembly and the Government and remains in place despite recommendations for it to be abolished during the previous cycle. TCK 301 was used against Orhan Pamuk, the Nobel laurate, in 2007 and against the murdered Turkish/Armenian journalist Hrant Dink in 2004. Since then, the number of people prosecuted under it has declined, but TCK Article 216 has now taken its place, and the number of trials brought under TCK 216 rose sharply in 2013. Pianist Fazıl Say and Turkish/Armenian writer-linguist Sevan Nisanyan were sentenced for insulting religious values under TCK 216.

10.  There are further legislative restrictions of note. The new National Intelligence Agency Law of April 2014 expands the powers and reduces the accountability of the National Intelligence Agency (MIT). The changes negatively affect the right to privacy, media freedom, journalists’ and citizens’ right to free expression, and the public’s right to access information. A controversial new bill called ‘internal security reform’ is currently going through parliament. If enacted, this new security law will increase the powers of the police and local state representatives to detain anybody under ‘reasonable doubt’ without an initial court order. Some lawyers warn that the bill in its present shape will be open to abuse and will be a backwards step for freedom of expression and assembly.

Attacks on freedom of expression, including political interference in media

11.  During the period under review, non-judicial means of harassment are becoming more and more common, including public condemnation of journalists by politicians, and political pressure on news outlets to change their editorial line.  Journalists who use freedom of expression to hold those in power to account and promote democratic values are being silenced.

12.  The former Prime Minister Tayyip Erdogan is known for persistently launching personal attacks against columnists who are critical of the government, and pressuring the media houses to fire them. In February 2012, Nuray Mert was fired from Milliyet daily newspaper following government pressure. Similarly, in March 2013, Hasan Cemal was fired after being targeted for maintaining that his paper was right to publish leaked documents that shed light on PKK leader Abdullah Öcalan’s thoughts on the peace process. It must be emphasized that neither Mert, nor Cemal were known to be anti-government journalists at the time of their dismissals. The fact that influential columnists such as Mert and Cemal could be dismissed under political pressure sent shockwaves through the journalistic circles, creating a climate of intimidation and self cencorship that has impact on editorial decisions.

13.  There have also been documented instances of the government interfering directly in the coverage of political events. For example, it was revealed through a leaked telephone conversation  that the prime minister ordered the controller of HaberTürk television to remove an opposition leader’s criticism from the ticker at the bottom of the news. Erdogan confirmed the recording was genuine when justifying his intervention later on.

14.  The then Prime Minister Erdoğan denounced an article published by journalist Mehmet Baransu in Taraf newspaper on 28 November 2013, detailing a decision that had been taken during a 2004 National Security Council (MGK) meeting to ‘finish off’ the Gülen religious movement. A case was initiated upon a complaint from the National Intelligence Agency, with the prosecutor demanding a 52-year sentence. The application is now being considered by an Ankara court.

Media censorship during and after the Gezi Park protests

15.  The state of freedom of expression in Turkey cannot really be fully appreciated without a close look at what happened during Gezi protests in 2013. The protests reflected how the legislative restrictions and political pressure had weakened mainstream media and fostered a dangerous culture of self-censorship. During the early days of the Gezi protests the largest media outlets were silent.

16.  As events unfolded in central Istanbul, CNNTURK showed a documentary about penguins and NTV a documentary about Nazis. The night the protestors were being dispersed by the police, Turkish society had to watch international media such as the BBC and CNN International to find out what was happening. NTV, 24 Hours News Channel provided a platform for the government to make statements in opposition to the protests without accommodating the views of the protesters, undermining the principle of impartiality. Furthermore, NTV Tarih, a history magazine owned by NTV, was shut down overnight after preparing a special ‘Gezi Park’ edition.

17.  Throughout the protests, journalists who documented the events, were arrested, beaten, threatened and harassed, as the government sought to silence and smear those speaking out against it. According to Bianet statistics, 153 journalists were attacked during the protests. Many journalists were fired or forced to resign from their jobs, including myself.

18.  On 11 June 2013, Turkey’s broadcast regulator RTÜK issued warnings and imposed fines on fringe tv channels Ulusal TV, Halk TV, EM TV and Cem TV  for their live coverage of the Gezi Park protests.  According to RTÜK, they encouraged or trivialised violence, violated broadcasting principles of impartiality, and failed to fulfil obligations not to report ‘unverified news’.

Increasing restrictions on freedom of expression online

19.  The failure of the media to inform the public led to an explosion in the usage of social media which immediately became the focus of new legal restrictions. Tayyip Erdoğan called social media ‘the worst menace to society’; and in March of this year, he vowed ‘not to leave this nation at the mercy of YouTube and Facebook.’ The rhetoric became a reality when Twitter was blocked just hours after Erdoğan promised to ‘wipe it out.’ and YouTube blocked in late March. Access to both Twitter and YouTube was restored after Turkey’s Supreme Court ruled that the blockings constituted illegal restrictions of the public’s right to obtain information. The bans were apparently imposed in an attempt to suspend anti-government leaks in the run-up to March local elections. Twitter and YouTube had been used as platforms for leaking information implicating the ruling AKP in corruption. The bans validate concerns over the state of press freedom and freedom of information and cast further doubts on whether Turkey will keep to its international commitments.

20.  Restrictive Internet laws have led to an increase in the censorship of online content. An estimated 48,537 websites have been blocked to date since the introduction of Law 5651 in 2007. Thousands of news sites and social platforms, such as YouTube, Vimeo, Dailymotion and Twitter have been blocked at different stages in the period under review.

21.  Those who use the Internet to express critical opinions or call for protest have become particular targets of repressive actions by the government. Throughout the Gezi protests, the government monitored social media and issued arrest warrants for those who organised or supported the protests via their Twitter and Facebook accounts. On June 4 2013, 38 Twitter users in the province of Izmir were detained for ‘inciting the public to disobey the law’. The tweets in question indicated areas where police were intervening against protesters and safe areas where medical help could be sought. After 7 months of investigations, 29 of the individuals who were arrested during the protests were charged, and face potential prison sentences of up to 3 years. The trial is ongoing.

22.  To conclude: freedom of expression in Turkey is in a sad state. It is the opinion of many members of Turkish and international civil society that Turkey has an increasingly stifling political atmosphere and that freedom of expression is under serious threat.  On meeting the IPI and CPJ delegation in Ankara, Head of Supreme Court Hasim Kılıc explained that he was worried about the discourse of hate and revenge. He said, “The political bodies have responsibility in the creation of this climate and this climate affects journalists too. We need to struggle for fundamental rights and freedoms. The journalists too should resist. They shouldn’t give up”.

Recommendations

23.  We call upon the government of Turkey to significantly improve the overall conditions for freedom of expression. In particular, the government of Turkey should:

Anti-terror legislation

  • Cease the abuse of anti-terror legislation and the penal code to prosecute journalists, bloggers, activists and other civil society actors, release those detained from prison, and drop pending charges;
  • Comprehensively reform counter-terrorism legislation, including Article 6/2 and 7/2 of the TMK and Articles 220/6, 220/8 and 314 of the TCK, to narrow definitions of ‘terrorism’, ‘organised crime’, and ‘propaganda’, and to ensure that the genuine purpose and demonstrable effect of any restriction on freedom of expression is necessary and proportionate to protect a legitimate national security interest;

Defamation, insult to the state and blasphemy

  • Decriminalise defamation by repealing Article 125 of the Penal Code;
  • Reform the Code of Obligations on civil defamation to ensure adequate defences for expression tha
    is true or is in the public interest, and to guard against the abuse of law suits to silence criticism of public officials;
  • Repeal Article 301 of the Penal Code on ‘Insulting the Turkish nation’;
  • Reform Article 216/3 of the Penal Code criminalising ‘inciting the population to enmity and hatred’ to bring it in line with Article 20(2) of the ICCPR and the Rabat Plan of Action, repealing provisions that allow prosecution for ‘insulting religious values’ or for ‘blasphemy’;

Freedom of press

  • Remove any restrictions or regulations that might place the media under political influence or compromise the vital role of the media as public watchdog, in particular oversight of RTÜK and BTK;
  • Take appropriate action, consistent with relevant human rights standards, to promote media diversity and prevent undue media dominance or concentration;
  • Promote transparency of media ownership making public the identity of their owners, and how it might reflect their persuasions or biases;
  • Guarantee the safety of journalists and media workers. Legislative and policy measures must be adopted to prevent all attacks against journalists and eradicate impunity in episodes of violence and intimidation;

Pre-trial detention

  • Release all persons in pre-trial detention or facing prison sentences for exercising their right to freedom of expression;

Surveillance and Freedom of Expression

  • Repeal National Intelligence Agency Law (No. 6532), and ensure adequate judicial and political oversight for the security services;
  • Restore judicial, prosecutorial, and parliamentary oversight of the National Intelligence Agency (MİT) in order to ensure that MİT actions affecting freedom of expression are proportionate and necessary in a democratic society;

Freedom of expression online

  • Amend Law 5651 to protect freedom of expression online, and ensure that any blocking of websites, IP addresses, ports, network protocols or types of use (e.g. social networking) is justified in accordance with international standards.

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