“Membership of an organization" requires the acts of joining an organization and entering the command of its hierarchical structure, as well as the existence of a transitive and organic link. Proving membership requires the establishment of continuity, diversity, and intensity of these acts. However, participating in demonstrations, expressing opinions, and journalistic activities are sufficient to be convicted “like a member of a terrorist group”

LEVENT PİŞKİN

Since 1991, with the inclusion of anti-terror law in criminal law, the balance between human rights and freedoms and counter-terrorism has been among the highly disputed issues in Turkey. Despite discussions, authorities keep broadening the Law on the Fight against Terrorism (TMK) and its implementation against human rights and freedoms. This broadening, utilized for silencing dissidents and the press (reporters, columnists, TV programmers) under the name of fighting terrorism is the reason why this article is written.

With the highest number of imprisoned journalists, Turkey is still considered among the most dangerous countries for journalists across the world. Various international institutions are often voicing concern about journalists and freedom of expression in Turkey. The government does not take this situation seriously and claims that these persons are interrogated, prosecuted or imprisoned for terrorism-related activities, not for journalism. Since journalism is not a crime, journalists are prosecuted under provisions not related to journalism that are mostly under the TMK. The government’s claim therefore does not go beyond being just a self-justified tautology.

The ambiguity and exceptionality of the TMK and these features' clear reflections on criminal law facilitates interferences with journalism and, more generally, with fundamental rights, such as the freedom of thought and expression, the right to assembly and demonstration, the freedom of obtaining and disseminating information. Among laws that allow the judiciary and governments to arbitrarily interfere with freedom of expression, Article 220/7 of the Turkish Penal Code (TCK) plays an important role. But before moving on to that, it may be useful to take a brief look at the evolution of Turkey’s anti-terrorism legislation.

A brief history of Turkey’s anti-terrorism law

In order to understand the logic behind the Turkish legislation regarding organized crime, we need to look at the history of the conflict between the PKK and the Republic of Turkey from different aspects. Without understanding the conflict and the structural and ideological transformation of the parties, understanding the spirit of the existing laws is impossible. Since a detailed assessment of all phases of this transformation would exceed the scope of this article, a general assessment will be made before focusing on the main subject.

Throughout the history of modern Turkey, the Kurdish question has been one of the most central issues and taken as a basis in determining state policies. With “the indivisible unity of the state and the nation” as a founding principle, the aim of creating a homogeneous society has always been kept alive. The unity of the nation and the country has not only remained a discourse but has become the fundamental principle behind the spirit of laws.

In 1984, at a time when the martial law of the 12 September 1980 military coup was in force, the Kurdish question that spread over decades gained a new dimension and materialized as an "armed conflict." Although the PKK's presence was defined as "a handful of bandits" by the state at the beginning (Özdağ 2007, 69), the increased activities of the PKK and the violent armed conflict rendered this approach and definition ineffective. The concept of “terrorism” was thus introduced instead.

The state immediately focused on military measures, as well as introducing several legal and structural practices such as the declaration of state of emergency (OHAL), the institution of the village guard system, and the evacuation of villages. The region started to be governed by emergency decrees, statutory rules and orders issued in line with recommendations issued by the National Security Council (MGK). The village guard system not only served military purposes but also helped as a political tool to determine who was loyal to the state. In light of this information, and the military’s strategy, the state began forced evacuations and depopulation of villages that refused to join the village guard system. The evacuation of villages was, in this sense, implemented as a military and administrative strategy (Balta, Paker ve Akça 2013, 11).

The state practices briefly recounted above served a military strategy. Another importance of this strategy is the aim of gaining spatial superiority. While the armed conflict intensified in rural areas, as the political and social organization of the Kurdish movement began to spread in the cities, the state developed and expanded its strategy to civil-political-social segments.

Leviathan's sword 

Although the Turkish Penal Code in force at the time (Law No. 765) provided the state with a wide range of actions against "organized crime," a special law on "terrorism" was enacted: the TMK (No. 3713, published in the Official Gazette No. 20843, April 1991). This law, which the state utilized as an "official" weapon to prevent the PKK's massification in urban areas, was placed under the jurisdiction of the State Security Courts (DGM), which consisted of civilian and military judges. The TMK was institutionalized as a sword swinging over legal activities, and over time, it started morphing into a mechanism with which to persecute peace and human rights defenders as well as civilians, since the definition of terrorism in the TMK was designed so broadly that it could be applied to any act, movement, or expression.

Over time, the changing structure of the PKK, its ideological transformation, as well as the transformation of the Kurdish movement towards a social movement, which became more massive and popular as it transformed, repositioned the state. As the PKK's civilian organization expanded with cultural and political activities, the possibility of determining who was a member of the organization became difficult for the state. In other words, the differentiation between civilians and armed militants faded; issues such as being part of a hierarchical structure, which is one of the essential elements for membership of an organization, were made incidental and ultimately, the state's capacity to accuse and prosecute civilians increased in line with the possibilities provided by legal amendments.

The most apparent move the state invented against this transformation occurred in the legal field -- at least until the curfews period. As the “Kurdish opposition not based on armed struggle” came to the fore with civil, legal, cultural and social activities and appeared in politics, the sword of the law became even sharper. The state, on the one hand, continued armed conflict with the PKK, and on the other, began prohibition and criminalization to prevent increased massification in cities. Closing of legal political parties and other non-governmental organizations, criminalizing events and all kinds of organizations, and mass detentions became the main tools of this process. As a result of this massification and field expansion, the criteria for determining who was an organization member became obscure again. By broadening its definition, the elements of organized crime were thus made ambiguous in contrast to the principle of lawfulness. Any act or expression that “suggests” compatibility with the purpose and ideology of the PKK/KCK was made illegal in this context. "The fight against terrorism" thus gained a judicial dimension apart from the military field. More precisely, the judiciary’s intervention was added to the security-centered military approach.

These amendments led to the stigmatization of legal and nonviolent acts and statements. The demand for peace and other political and cultural demands and speeches were deemed sufficient to regard anyone as a "terrorist" and to put them on trial. The increase in the number of trials on terrorism charges over the years supports this argument:

In the history of the Turkish legal system, the TMK has always been a regulation with severe problems in terms of fundamental rights and freedoms from the very beginning. Introducing the concept of "terrorism" with a broad definition in criminal law, where the principle of certainty is a constituent, poses a problem in itself. Many of the concepts used in the TMK are political, temporal, and, therefore, of a relative nature. It is clear that it was legislated against the Kurdish movement and left-wing organizations. When it was being prepared, the acts of persons belonging to right-wing groups were not included in its scope, although these acts were deemed a terrorism crime (Tanör 1990, 167). On the other hand, there are opinions arguing that the TMK is effective against the "religious terrorist organizations" (Hafızoğulları ve Kurşun 2007, 57). However, it should be noted that although such opinions had been valid for a period, they have lost their meaning. As the concept of terrorism has a political nature, all kinds of organizations, as well as acts can be easily included in the scope of the TMK. It has been amended more than 30 times since its enactment, and some of its provisions have been revoked by the Constitutional Court. Nevertheless, the number of acts considered terrorism is still very high.

Another important feature of the TMK is the addition of the contextual element to the objective and subjective elements of a crime (Turinay 2019, 338). This inclusion means broadening the discretion of a practitioner and allowing a judge to comment in contradiction with the principles of criminal proceedings. In a country where judicial independence and impartiality have always been controversial, the consequences of including such an element in criminal proceedings are apparent. The contextual element almost bypasses the subjective element too. Generally, the intent of the perpetrator is essential when characterizing a crime; however, in these circumstances, the result that the perpetrator aims to achieve is essential; not the attitude of the perpetrator (Turinay 2019, 339). This is what gives Turkey’s anti-terrorism law the characteristic of a law about “endangerment crimes.”

The TMK, enacted with the idea that the methods used in individually committed crimes would be insufficient in organized crime, deems the endangerment of legal benefit sufficient for accusing someone. For this type of criminality, it is not important whether the organization did or did not not take any action as the existence of the organization in itself is considered a crime on the grounds that it will endanger public security and peace. This characterizes organized crime as an endangerment crime. Trials and legislation in this field are actually an exception; but the anti-terrorism law became a law in which exception is established as a rule. The prevention dimension of combating crime is neglected, directly focusing on the sanctioning stage.

Article 220/7 of the TCK: A legal anomaly 

As briefly described above, the concept of terrorist organization has been defined in the legislation since 1991 as a special type of organized crime. The TMK has been standing as a separate and special criminal law since 1991 in contrast with the principles of criminal law and universal law. Article 220 of the TCK, which came into force in 2004, has deepened this contrast.

Article 220 of the Turkish Penal Code currently in force does not fully correspond to any article in the former penal code. The concept of organized crime, which was previously regulated separately by the former penal code and other special codes, is regulated as a new type of crime under Article 220. Even though this provision was designed with the purpose of gathering various definitions of organized crime under one roof, it is not possible to say that the disorganization has been fixed (Ersan 2013, 382).

With the enactment of the new penal code, special criminal laws were also reviewed. In this context, the TMK was comprehensively amended by Law No. 5532 (Law on the Amendment to the Law on the Fight Against Terrorism, published in the Official Gazette No. 26232, 18 July 2006) in 2006. The most important amendment introduced with this law was the amendment to TMK Article 1, which previously defined the concept of “terrorist organization.” With the amendment, this definition was removed, and the concept of “terrorism” was introduced instead. The concept of terrorist organization has since lost its legal basis and become ambiguous. Although there was a reference to Article 220 of the TCK and the United Nations Convention against Transnational Organized Crime in the reasoning of the amendment, the ambiguity has not been eliminated; on the contrary, it has been strengthened against rights and freedoms due to the wording of Article 220.

In addition to removing the definition of terrorist organization from the TMK, the requirement of being armed to be characterized as a terrorist organization was also revoked with the amendment. In other words, with the amendment, being armed was no longer a condition for an organization to be characterized as a terrorist group (Turinay, Ceza Hukukunda Terör Örgütü Kavramı 2016, 74 ff). This paved the way for the unclear and highly disputed concepts of "liaison" and "junction" to be introduced in legal vocabulary and utilized by courts in their reasoning of verdicts. This situation has led to numerous civil and legally operating associations, groups and other bodies to be labeled with terrorism and criminalized. Paragraphs 6, 7, and 8 of TCK Article 220 provide the legal basis for this practice. The implementation of these provisions demonstrates that the lawmaker considers journalists, politicians, or human rights defenders to be more dangerous than an armed criminal organization.

Article 220 is under the TCK’s Part 5 titled “Offences against Public Peace,” which is under the 3rd Chapter of the Law, titled “Offences Against the Public.” Accordingly, the protected legal value is public security and peace. Although Article 220 is a general provision on organized crime, in practice, it is applied in cases of special organized crimes. Article 220 Paragraph 7, which is the focus of this article, with its unclear wording leading to uncertainty about what is considered a crime, has been mainly implemented against critical journalists, political dissidents and human rights defenders.

Article 220/7, a provision about organized criminal activity, is an oxymoron provision that is aimed at and makes it possible to punish individuals who are not involved with any such organization. It assumes that individuals can commit terrorist acts that cannot be committed without being part of a terrorist organization and ensures that they are punished like a member of that organization. The essential condition is that the person is “not a member of an organization.” Because if persons are actually members of an organization, they are punished for being a member, not for aiding and abetting, since the elements of membership would be established. 

Article 314 of the TCK is a special provision that criminalizes terrorist organizations in the context of organized crime. However, Article 220 is generally applied to organized crime, since Article 314 is uncertain and lacks specificity and refers directly to Article 220 as applicable to this offense. The vagueness of Article 314 increases practitioners' discretion, since every single incident is qualified differently by each practitioner. Although case-law by the Court of Cassation has established the criteria for membership of a terrorist group, the arbitrariness and uncertainty remain the biggest problem.

Then what does Article 220/7 criminalize? What does it mean to be punished “like a member of an organization without being its member”? The first question can be answered as “aiding an organization.” In other words, aiding an organization without being its member is the act that constitutes a crime to be punished. There are various provisions and rules concerning aiding an organization, especially a terrorist organization. For instance, while Article 315 of the Turkish Penal Code criminalizes the act of supplying arms, the Law on the Prevention of Financing of Terrorism (No. 6415) forbids any monetary aid. The remaining issues are subject to "broad interpretation" by almost all assize courts, and especially by the Court of Cassation, violating the prohibition on reformatio in peius. Even graffiti painted on a high school wall was regarded by the General Assembly of Criminal Chambers of the Court of Cassation within the scope of "aiding an organization." In such cases, even if the criteria determined by the Court of Cassation itself for membership in an organization have not been met; in other words, even if an organic tie and the element of continuity have not been identified, the accused may be punished like a member of an organization under Article 314. According to the prevailing opinion in the doctrine, such aid must involve intensive and continuous financial support that includes the acts of providing an organization with a place, arms and equipment, or sharing confidential information with it. However, what is considered as aid is far from clear and predictable, and therefore entirely within the discretion of the practitioner. 

Article 220/7 provides practitioners with an unlimited power to punish individuals as though they were a member of an organization without establishing the objective elements of the offense. Persons accused who do not comply with the criteria set forth by the Court of Cassation for membership; in other words, who do not have an "organic tie" with an organization and whose acts are not "continuous-intensive-diverse" cannot be punished for "being a member of an organization" but can be punished "as if they were a terrorist group member." In this regard, having the same general aims as any terrorist group is considered suitable for being punished like an organization member. In other words, in cases where an act, statement, or expression intersects with the objectives or instructions of an armed organization, the ambiguous character of the law leaves a wide margin of appreciation, leading to the accused to be easily punished. 

The meaning of the expression of "knowingly and willingly aiding and abetting an organization" in the wording of Article 220/7 needs to be explained and determined. Due to its current form, everyone is at risk of being tried at any moment because of its uncertainty, which increases the discretion of judges and prosecutors. This leads to dissidents being punished merely for their political views, opinions, or for criticising the government. On the other hand, although the subjective element of the crime requires a specific intent when it is interpreted as “contributing to realizing the objectives of the organization,” it again creates an endless discretion. News reports, newspaper columns, expression of thoughts, or participating in demonstrations are interpreted as contributions to the objectives of the organization.

In the case of Imret v. Turkey (no. 2), where the European Court of Human Rights found that Article 11 of the European Convention on Human Rights had been violated, the domestic court concluded that the applicant went beyond the crime of making propaganda and committed the crime of aiding an organization under Article 220/7 of the TCK by participating in various demonstrations during which he had chanted slogans praising the PKK. Citing news stories published by pro-PKK media outlets as evidence, the court considered participating in demonstrations, making a victory sign and shouting slogans in favor of Abdullah Öcalan crimes under Article 220/7. This point of view is still prevalent. For instance, the Diyarbakır 8th Assize Court made the same consideration in the case against İdris Baluken, HDP’s former parliamentary group chairman. Taking into account the “intensity, variety, and continuity” of his activities, the Diyarbakır 8th Assize Court convicted Baluken of “membership of an organization” for participating in more than one demonstrations and making speeches that allegedly “amounted to propaganda” (Case no. 2016/49, 2018). It is apparent that this practice is a straightforward attack on rights and freedoms that are the basis of freedom of expression, such as the right to organize meetings and demonstrations and the freedom of dissemination of expression and thought.

Interference with freedom of the press, particularly punishing dissident press members, is justified via Article 220/7 as well, again through the wide margin of appreciation given to practitioners when a newspaper column, a news report or a commentary is considered to correspond with an organization's objectives or instructions. Several lines from the judgment about Ahmet Altan, Mehmet Altan and Nazlı Ilıcak rendered by the 16th Criminal Chamber of the Court of Cassation constitute striking examples in this regard. The judgment deemed journalistic activity, more precisely, dissident journalism, as a “guise”: “[…] during the period leading up to the coup attempt, the accused attempted to give the impression of regular political opposition to maintain their so-called legitimacy before large masses consisting of the sympathizers of the organization [FETÖ], which cannot be regarded within the scope of journalistic activity […]” Expressions of thought and articles written by the defendants were considered as “statements legitimizing the organization” and not regarded within the scope of journalistic activity (Case no. 2019/521, 2019). Political opinions, expressions of thought are being exposed to manipulation through the arbitrary interference of the judiciary by interfering with the essence of the right.

The Cumhuriyet newspaper trial constitutes another example. The assessment of the Court of Cassation concerning the trial court’s verdict proves the remarks above (Case no. 2019/7004, 2019). The Court of Cassation described “propaganda” as “a certain form of aid provided to ensure the legitimacy of the organization in question,” and defined this aid as “facilitating the activities of the organization.” The ruling said aids “not based on a concrete incident” and “provided to be utilized within the scope of organizational activity” will fall under TCK Article 220/7. In light of this assessment, a news report criticizing the government that is not based on a concrete incident and that can be used by any organization for propaganda purposes can be subjected to Article 220/7, and journalists can easily be convicted as in the Cumhuriyet trial. Although the Court of Cassation concluded that the crime of aiding an organization had not occurred in the Cumhuriyet case, the court did not state that this crime could not be committed through news coverage or newspaper articles, as in the cases of Mehmet Altan, Ahmet Altan, and Nazlı Ilıcak. Moreover, it overlooked and did not mention the ECtHR ruling in the case of İmret v. Turkey, in which the Strasbourg court had held that Article 220/7 did not meet the principle of legality due to its unforeseeable characteristic. 

The crime of “membership of an organization” involves the acts of joining an organization and entering the command of its hierarchical structure as well as the existence of a transitive and organic tie. Proving the allegation of “membership of an organization” requires the confirmation of continuity, diversity and intensity of these acts. Nevertheless, participating in meetings and demonstrations, expressing opinions, and reporting and conducting other journalistic activities may be sufficient to be convicted “as if one were a member of an organization.” So instead of having to deal with proving the crime of “membership of an organization,” the justice system in Turkey prefers to punish the accused “as if they were an organization member” since the latter is much easier and since both charges have the same weight. 

In conclusion...

The goal in the implementation of Article 220/7 is to punish individuals, dissidents, journalists and politicians “as if they were members of an organization” over an expression regarded “in favor of” an organization, regardless of whether there is an organic tie. Article 220/7, which is one of the most dangerous provisions in Turkey’s criminal law system, can be and is being applied as a means of repressing all kinds of opposition through the judiciary, threatening freedom of expression and freedom of assembly and rendering these freedoms unusable.

Article 220/7 was designed as a tool against the massification and popularization of the Kurdish movement and has been used by the judiciary to target civil and legally operating structures and individuals within these structures. However, now it does not only criminalize the Kurdish political and social movement but serves as a sword against all social opposition. The ambiguity in the wording of Article 220/7 causes this arbitrariness, which has transformed into an infinite oppression and censorship mechanism.