Violations of press freedom in Turkey are not new. During the military regime in the aftermath of the 1980 coup freedom of the press was severely limited. Gradually after the restoration of democracy, freedom of press gained momentum. However, violations of press freedom continued to exist.

Since Recep Tayyip Erdogan came into power there has been limited improvement in human rights protections in Turkey. Yet, problems regarding press freedom have never been addressed seriously.

 

International organizations have made a note of such repression over the years. The European Commission addressed a report on Turkey’s application for membership of the European Union to the Parliament and the Council on 10 October 2012. The following extract is particularly important:

 

“As regards freedom of expression, a number of journalists were released pending trial after excessively long periods spent in pre-trial detention. The third judicial reform package prohibits the seizure of written work before publication. It also eases restrictions on media reporting of criminal investigations. There continues to be room for debating some topics perceived as sensitive, such as the Armenian issue or the role of the military, and opposition views are regularly expressed. However, these reforms fall short of a significant improvement regarding freedom of expression. The increasing incidence of violations of freedom of expression raise serious concerns, and freedom of the media continued to be further restricted in practice. The increasing tendency to imprison journalists, media workers and distributers fuelled these concerns. The European Court of Human Rights received a large number of applications concerning violations of freedom of expression by Turkey.

 

The legal framework on organized crime and terrorism is still imprecise and contains definitions which are open to abuse, leading to numerous indictments and convictions. Moreover, its interpretation by prosecutors and courts is uneven and is not in line with the European Convention on Human Rights or the case-law of the European Court of Human Rights. Turkey needs to amend its penal code and anti-terror legislation to make a clear distinction between the incitement to violence and the expression of nonviolent ideas. The application of Articles 6 and 7 of the Anti-Terror Law in combination with Articles 220 and 314 of the Turkish Criminal Code leads to abuses; in short, writing an article or making a speech can still lead to a court case and a long prison sentence for membership or leadership of a terrorist organization. High-level government and state officials and the military repeatedly turn publicly against the press and launch court cases. On a number of occasions journalists have been fired after signing articles openly critical of the government.

 

Website bans of disproportionate scope and duration continued. Since May 2009 the Telecommunications Communication Presidency (TİB) has published no statistics on banned sites. Court cases are ongoing against the You Tube video-sharing website and other web portals. The Law on the Internet, which limits freedom of expression and restricts citizens’ right to access to information, needs to be revised. An Information Technologies and Communication Board (ICTA) decision introducing optional internet filters entered into force”.

 

In terms of access to justice for journalists in Turkey the situation is no different for journalists compared to other groups in Turkey. Journalists have faced numerous hurdles by a government that is determined to do everything to thwart access to justice. Some journalists remained in detention for an exceptionally long time and were released without their trials having resulted in an acquittal or dismissal. These suspended trials thus remained like a sword of Damocles hanging over their heads; resuming their activity, they remained at risk of getting arrested again without the slightest notice. For instance, this was the case of Bariş Terkoğlu and Bariş Pehlivan, working for the OdaTV website. Both were released on 14 September 2012 after 578 days in detention. On one journalist, charges were brought after critical comments against the journalist concerned by the President of the Republic. On the journalist the President stated that “Someone financed terrorists in the context of the Gezi events. This man is now behind bars…”.

 

Since 2016 repression against journalists have only seen an increase, According to Reporters Without Borders (RSF) The number of journalists detained only in the first year of the state of emergency surpassed 100. Other organizations gave much larger figures, with Free Journalists Initiative claiming that 187 journalists were under arrest by the end of the OHAL on July 2018.24 The discrepancies among numbers given by different organizations underline a more dangerous trend of churn in Turkish jails and lack of information about the fate of journalists in the country. By the time this submission was prepared the Free Journalists Initiative’s number was 154,26 and of RSF was 34.27. A further 167 journalists were under search warrant and had to flee Turkey to escape arrest according to the Stockholm Centre for Freedom’s database.

 

These factors show that the press freedom in Turkey today has been threatened at its very foundations. There is a government that is willing to do anything to silence journalists who are willing to question the government. The journalists are working in a hostile and a threatening environment. This is especially the case if the journalist is critical of government policy. This is the state of affairs of journalists in Turkey.

 

Information from:

https://turkeytribunal.com/wp-content/uploads/2021/08/7-Turkey-Tribunal-Turkey-Tribunal-Reports-Compilation-PrintReady.pdf.

Impunity has been a historic problem in Turkey. There were two periods when impunity in Turkey levels the 1980s and for a few years after the 2015 parliamentary elections. Impunity caught hold during the 2016 coup attempt.

 

In the 80s once martial law was declared and extended throughout the country and until 1983 and Turkey was governed under repressive military rule, leading to devastating consequences for human rights. As an illustration, more than half a million people were arbitrarily detained on political grounds and thousands were subjected to widespread torture and mistreatment. Additionally, more than two hundred extrajudicial killings and fifty court-ordered executions occurred during that era. Despite these massive numbers, in a provisional article the 1982 Turkish Constitution adopted under the military rule provided full immunity to the leaders of the military coup, as well all as military-public officials, from any form of prosecution.

 

 

In the 1980s and 1990s the reason for the impunity was because of the Turkish state security forces and the PKK engaged in violent confrontations, at times verging on full-scale warfare. A state of emergency was thus declared where the fighting between Turkish state forces and the PKK was most intense. Regional governors in each emergency province and in the adjacent provinces, with all private and public security forces under their command, were responsible for taking any and all necessary measures under the state of emergency regime. These ‘quasi-martial law’ exceptional powers included the authority to impose curfews, to prohibit persons whose activities were deemed detrimental to public order from entering the concerned region, and to evacuate villages. Against this backdrop, the European Court of Human Rights (ECtHR) examined a large number of applications alleging grave human rights violations, including torture, extrajudicial killings and enforced disappearances that arose out ofstate officials’ activities in the 1990s in Turkey’s Kurdish southeastern region. The Court has repeatedly found Turkey violating the European Convention on Human Rights (ECHR) in over 175 cases concerning the right to life (Art. 2), the freedom from torture, inhuman and degrading treatment or punishment (Art. 3), the right to liberty and security (Art. 5), the right to a fair trial (Art.6), the right to an effective remedy (Art. 13) and the protection of property (Art. 1 of Protocol No.1).

 

The other phase of violent impunity was after the 2015 parliamentary elections. Since then the levels to which violent impunity has reached is alarming. After the 2016 coup an emergency was declared and that resulted in arbitrary actions that resulted in mass arrests, detentions, extracting forced confessions inside jails, filing of false complaints against dissidents, sudden and arbitrary raids on properties of accused individuals without permission, violent ill-treatment of political opponents / dissenters inside jails among other problems. In fact, the situation has been so bad that in November 2019 UN High commissioner noted that “the escalation of torture and violence against detainees while, at the same time, security personnel who may have committed crimes on behalf of the government, enjoyed immunity from prosecution both during and after the attempted coup”. The then high commissioner also suggested that “to tackle the numerous root causes of impunity” in the country. These have remained unaddressed and will need to be done.

 

Information retrieved from:

https://turkeytribunal.com/wp-content/uploads/2021/08/7-Turkey-Tribunal-Turkey-Tribunal-Reports-Compilation-PrintReady.pdf.

 

Out of 128 countries, Turkey ranks a poor 107^th in the rule of law index of 2020. In the year 2014, it was ranked 59^th. These figures reveal a lot about the state of affairs as far as thejudiciary in Turkey is concerned.

 

To understand why Turkey ranks so poorly in the rule of law index there is a need to understand some of the core tenets of what rule of law is. The rule of law is a conception of the State in which all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. Under the rule of law, courts thus operate as the ultimate guardians of the respect of the law by public authorities and the State accepts courts’ authority.

 

These rankings do show that the Turkish state is not a rule of law state. In order to clearly understand this there is a need to take two parameters into consideration. They are

 

➢ Judicial Independence

➢ Access to justice and effective judicial protection

 

Judicial independence and rule of law:

Theoretically, the Turkish constitution ensures the independence of the judiciary. Article 9 of the Turkish constitution states that “Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming with the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions. Article 139 establishes the security of tenure of judges and public prosecutors and stipulates that: Judges and public prosecutors shall not be dismissed, or unless they request, shall not be retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or a post”.

 

The deterioration of the Turkish judiciary started in 2014 when the Erdogan government signed an Omnibus Law (Law n° 6526 amending the Anti-terror Law, the criminal procedure code, and various laws) that abolished the special courts set up under the umbrella of art. 10 of the Anti-terror Law, the so-called “liberty judges”, and the special prosecutors, without further prorogations of their operations. These changes occurred while investigations and trials on high-profile cases were going on. Once the law entered into force in March of the same year, special judges and prosecutors were relocated by HSYK (then known as the Supreme Board of Judges and Prosecutors) to other tasks in only 15 days. The number and location of the new courts, their territorial jurisdiction, and judges and prosecutors assigned to the new courts were decided by the HSYK in only 6 days since the entering into force of the law.

After signing this law into force The appointment of judges and prosecutors did not follow a public call for applications; judges and prosecutors were not consulted prior to their appointment; the reasons for their appointment were neither made public nor communicated to them. The HSYK decision about the appointment was not reasoned. However, this was only one consequence of the deterioration.

 

Between 2014 and 2016 due to the 2014 omnibus law, Under Government pressure, 2014 and 2016, the Council of Judges and Prosecutors continued to engage in large-scale transfers of judges and prosecutors without their consent. In many cases the reason for the transfer was notable. In one case a judge; judges İbrahim Lorasdağı, Barış Cömert and Necla Yeşilyurt Gülbiçim from the Istanbul Court, who released twenty-one detained journalists after eight months of pre-trial detention, were suspended by the HYSK. In another instance, judges of the Istanbul 37th Heavy Penal Court were removed by the Council after the Court released seventeen detained lawyers. There are many examples of such actions that can be given. A June 2016 ICJ report highlights that transfers of judges between judicial positions in different regions of Turkey were being applied as a hidden form of disciplinary sanction and as a means to marginalize judges and prosecutors seen as unsupportive of Government interests or objectives.

 

If between 2014 ad 2016 there were large-scale transfers of judges, from 2016 onwards after the coup there was large-scale purging of the judiciary. In the immediate aftermath of the coup d’etat, the judicial Council approved a proscription list of 2,745 judges and prosecutors. Between 2016 and 2020 there have been mass dismissals of more than 4000 Turkish judges and prosecutors as well as mass arrests of around 2450 Turkish judges and prosecutors.

 

The judiciary in Turkey is anything but independent. Laws have stifled the independence of the judiciary, judges have been transferred or suspended, they have been pressured, there has been a purge of the judiciary. None of this has any relationship with rule of law or the idea that law as stated by the constitution and the penal code is supreme. Rule of law is the idea that public powers always act within the constraints set out by law.

 

Access to justice and effective judicial protection:

 

The biggest constraint regarding these two points on access to justice and effective judicial protection is a judiciary that is not fully free from governmental pressure.

 

Since the Gezi protests and even before, in high profile cases the Human Rights Defenders (HRD) and especially lawyers have been a target of the Government.

 

Vague definition and broad interpretation of Article 314 of the Turkish Criminal Code, which constitutes the basis for the intimidation and detention of hundreds of thousands of people, has been repeatedly found by the ECtHR to be contrary to the Convention principles and arbitrarily applied. Most recently, in its judgment dated 22 December 2020 in Selahattin Demirtas v.Turkey 129 (No. 2) case, the Court’s Grand Chamber observed, in line with the Venice Commission’s findings in its Opinion130 on Articles 216, 299, 301, and 314 of the Criminal Code, that the Code does not define the concepts of an “armed organization” and an “armed group”.

 

In terms of effective judicial protection, the state is unable to do it because of the arrest of judges and lawyers. Due to the arrests and detention of lawyers and judges, the number of people who can represent victims of abuse of laws and arbitrary arrests is simply unavailable to do so. In the aftermath of July 2016, 615 lawyers were arrested and 1,600 faced prosecution based on terrorism-related accusations. 450 lawyers have been convicted so far to a total of 2786 years in jail, according to “The Arrested Lawyers Initiative”. Among persecuted lawyers, some were presidents (or former presidents) of provincial bar associations. The consequence is long periods of individuals being in jail without any trial. There is also a long period of waiting time for people to get access and judicial protection.

 

This also a representation of lack of Rule of law is the idea that public powers always act within the constraints set out by law. This is also an affirmation that the judiciary in Turkey is anything but independent.

 

Information from:

https://turkeytribunal.com/wp-content/uploads/2021/08/7-Turkey-Tribunal-Turkey-Tribunal-Reports-Compilation-PrintReady.pdf.

 

 

Abductions have always remained a serious issue in Turkey. With the brief exception of the 2000s Turkey has unfortunately had a poor track record as far as dealing with the issue of abduction of individuals is concerned. Between 2002 and 2015 only 1 case of enforced disappearance was transmitted to the UN Working Group on Enforced or Involuntary Disappearances. However, since 2016 the trend has reversed with 68 cases of abductions between then and 2020/2021. The 68 are reported cases and thus unreported cases can be thought off to be several times higher.

 

There are two kinds of abductions that Turkey is involved in. Abductions within borders i.e. domestic abductions and domestic beyond the International borders. As far as abductions in the international borders is concerned, Turkish officials have repeatedly claimed that Turkey was involved in more than 100 international abductions. In fact, in sharp contrast, Turkey is much more open about its responsibility in terms of extra-territorial abductions.

 

Abductions take place in broad daylight without any fear of consequences and repercussions from the law and order machienary.  For instance, an individual was abducted by a heavily armed group of almost 40 people with many witnesses being present. In these instances people did testify to the police about the abduction of individuals. For instance in the case where an individual was abducted by 40 people there were many witnesses who gave detailed information to the police about such abductions. Technology such as CCTV cameras also did not act as a deterrence against perpetrators who wanted to kidnap individuals in this particular case and did not in the case of other individuals.

 

Many of the abductees were considered by the Turkish State as political opponents. Therefore, many went into hiding knowing that they would be the next in line to get arrested. There were many ways to deduce the involvement of the state in internal abductions of individual people. One was that reference can be made to various statements made by people who were initially abducted but then resurfaced and were finally able to make statements. In one particular case an individual testified before the Ankara 34th High Criminal Court that he was abducted by some of his former Turkey’s National Intelligence Organization (“MIT”) colleagues. During a March 2019 hearing in a separate case an individual confirmed that he worked for the Turkish state before he was he was abducted by MIT. Once he was released the abducted individual told human rights watch that he had been kept for 3 months in a secret detention facility by men who told him they worked for the state.

 

Even more incriminating evidence of state involvement in such abductions is that CCTV showing that the abductors frequently wore clothes or badges indicating that they worked for the Turkish police forces or the Turkish secret services. Moreover, these abductions were confirmed by confirmed by a video interview given by Mustafa Yeneroğlu, member of Turkish parliament and former chair of the parliament’s Committee on Human Rights Inquiry.

 

All abductees, consequently, disappeared for a period ranging from one month to as much as two years without any information on their whereabouts was given.

 

 

There are also other ways by which abductees are harassed by the Turkish state. They are as follows;

 

1. The abductees are not allowed to openly discuss their situation with their relatives.
2. The abductees are limited in their right to choose their own lawyer.
3. The abductees are not brought promptly for a judge
4. The abductees are put under pressure to not fully pursue their defence
5. The abductees are prevented from being examined by an independent physician.

 

As a consequence of such manifestly illegal actions by the Turkish state and government political opponents and in extension the ordinary public life in fear in the event that they criticize their government. The public at large fear terrible consequences for them and their family which has a chilling effect on freedom of speech, privacy of individual, fundamental human rights and most importantly the dignity of the larger public. The public and especially political opponents live in fear of repression and with no guarantee for their safety and security. The situation is such that anything can happen anyone opposing the government.

 

Most experts consider such actions to be violations of international laws and statutes and is considered to be enforced disappearances by such experts who understand the legality and illegality of state actions.

 

The UN on the Protection of all Persons against Enforced Disappearance (the “UN Declaration”) enforced disappearances occur when “persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organised groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.”

 

Article 1 of the UN declaration states that:

 

“Any act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.”

 

The actions of the Turkish state and known facts corroborate with the definitions of what constitutes abductions or specific method of abduction like enforced disappearances.

 

Information from:

https://turkeytribunal.com/wp-content/uploads/2021/08/7-Turkey-Tribunal-Turkey-Tribunal-Reports-Compilation-PrintReady.pdf.

Just one organization named Human Rights Association – (IHA HRD in Turkish) has reported some 2063 complaints of torture in the years between 2013-2018. These statistics show that torture is a significant problem in Turkey today.

 

 

Torture has been a historic reality and continues to be a present-day reality. Over the last forty years since the 1980 coup torture has been used widely in Turkey. Statistics show that in the 1990s torture was very common in prisons across the country. Various CPT (Committee for the prevention of torture) and well as UN statistics have shown that between 1991 and 2020 Turkey had 620 cases of violation of article 3 of the ECHR. Article 3 of the ECHR treats torture as a human rights violation without exception. With the brief exception of the 2000s when the first Erdogan government declared its zero-tolerance policy towards torture, throughout this entire period torture has been a pervasive and serious issue. For the years 2010 to 2020 i.e. the entire decade independent sources estimate that 3,000 torture complaints were filed on average. The estimate of 2063 between 2013 to 2018 may also be considered alongside the 3000 complaints filed on an average.

 

Estimates are a reflection of what is only part of the problem. The Turkish government does not release exact numbers on the cases of torture. However, some other problems include lack of indictment in torture cases, police harassment and intimidation of individuals who pursue torture complaints against such officers who are involved in the torture of individuals, declining trend as far opening a torture case is concerned.

 

The consequences of torture on political prisoners in Turkey assume an altogether different dimension in Turkey. The least attention is paid to the persecution and torture of political opponents in Turkey. This has especially been so since 2016. Several laws passed after the 2016 coup ensures the possibility of long-term custody in police stations without judicial review, possibility to deny contact with a lawyer for 5 days, refusing lawyers, prohibiting the communication of the judicial file including medical reports, impunity of security officials, (…) which are accompanied by a sharp increase in (allegations of) cases of torture.

 

Torture in Turkey is a reality and the situation is dire. Various reports on the complaints on torture, the lack of respect for the basic rights of imprisoned people, and vague laws with the intent of persecuting political opponents have placed citizens across various sections of society in a vulnerable situation.  Some laws such as detaining people without a political review increase the possibility of grievous torture being inflicted on the individual. In addition, such provisions in various laws are in every way a violation of International law and various human rights statutes.

 

Information from:

https://turkeytribunal.com/wp-content/uploads/2021/08/7-Turkey-Tribunal-Turkey-Tribunal-Reports-Compilation-PrintReady.pdf.

In the conventional sense, there is not exactly something called a tribunal court.

However, a tribunal can assume multiple forms. A tribunal can be an institution with the authority to judge, adjudicate on, or determine claims or disputes. Such institutions may or may not be known or called courts.

 

However, several institutions are tribunals and have the mandate to function like courts. These can be called or are known as tribunal courts. For example, ICTR or International Criminal Tribunal for Rwanda had the mandate of prosecuting people who were involved in the Rwandan genocide. It involved the typical court proceedings such as presenting evidence in front of the judge. International Criminal Tribunal for Rwanda is not the only tribunal court that had the mandate of prosecuting people who were involved in serious criminal activities. There is also a special tribunal for Lebanon that is investigating the circumstances under which former President Rafic Hariri was assassinated. To deal with crimes in the former Yugoslavia there is an international criminal tribunal for the former Yugoslavia.

 

There is a significant difference between a court and a tribunal. A tribunal has a specific mandate of individuals or the type of individuals who can be prosecuted. That is not the case with courts. This can be said to be the case with both the International Criminal Court (ICC) and the International court of justice (ICJ). Indeed, the ICC deals with crimes committed by individuals, and the ICJ deals with disputes between nation-states. However, the Rome Statute that governs the conduct of the ICC lists four kinds of activities as crimes. They are genocide, crimes against humanity, war crimes, and the crime of aggression. Crime of aggression was included as a serious criminal offense in 2017. The ICJ is an organ of the UN and thus the UN statute governs the ICJ’s conduct as well as other relevant international law. Therefore, the ICC and ICJ would not be classed as a tribunal because the courts deal with a wide range of cases rather than specific cases and individuals connected to the case.

The most common non-court activity of a tribunal is an award of claims and compensation to businesses. An international tribunal can order multinational companies to seize assets in case governments fail to pay the compensation in case of a business dispute.

 

 

Sources:

1. https://books.google.nl/books?id=4GgYAAAAIAAJ&redir_esc=y.

2.https://www.oxfordlearnersdictionaries.com/definition/english/tribunal?q=tribunal.

3. https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.