Although Article 7/2 of Turkey’s Anti-Terror Law is one of the most critical problems for press freedom and freedom of expression cases, it is clear that the amendment in this provision alone will not be sufficient

 

KEMAL GÖKTAŞ

On 17 October 2019, Law No. 7188 on the Amendment of the Code of Criminal Procedure and Some Other Laws, publicly known as the Judicial Reform Package, was enacted by the Parliament. After being ratified by the President on 24 October 2019, the law was published in the Official Gazette and came into force.

This analysis will mainly focus on the provisions in the package that are related to freedom of expression and press freedom as well as the independence of the judiciary, which safeguards these freedoms.

The crime of “terrorism propaganda”

One of the most controversial legislative amendments in the Judicial Reform Package was introduced in Article 7/2 of Turkey’s Law on the Fight against Terrorism, which criminalizes the act of “making propaganda for a terrorist organization” by adding a clause that reads: “Expressions of opinion that do not go beyond the limit of giving information or that are aimed at criticism do not constitute a crime.” 

Thanks to this amendment, which was publicized as an attempt to broaden the limits of freedom of expression, many people imprisoned for this crime were released and others standing trial on this charge were acquitted.

Yet, a previous amendment introduced in 2013 in Article 7/2 of the same law had already decriminalized the act of merely making propaganda for a terrorist organization and had stipulated that “expressions of opinion without incitement to violence” cannot be punished. This article held that “anyone who makes propaganda for a terrorist organization in ways that justify or praise the methods of the said organization that contain force, violence or threats, or that encourages the use of these methods, shall be sentenced to one to five years of imprisonment.” 

Despite this provision, in practice, the crime of “making propaganda for a terrorist organization” had been applied in a broad manner to address almost all criticism against the government on particular topics (especially the Kurdish issue, human rights violations). Particularly based on police surveillance of social media, arrest, custody, pre-trial detention and judicial control decisions used to be liberally given against statements by People’s Democratic Party (HDP) MPs and commentary by dissident journalists, regarded as “terrorism propaganda.”

After regional courts of appeal were introduced on 20 July 2016, convictions for this crime could not be appealed with the Supreme Court of Appeals since sentences imposed on defendants for this crime were often shorter than five years. As will be explained in detail below, the Judicial Reform Package introduced an exception concerning crimes related to freedom of expression and made it possible to appeal these verdicts.

The Constitutional Court and the 16th Criminal Chamber of the Supreme Court of Appeals had already rendered judgments concerning the provision in question, stating that expressions of opinions “within the limits of criticism or giving information” did not constitute a crime. Case-law by the Supreme Court of Appeals, which the Constitutional Court referenced in its judgment about “Academics for Peace,” held that “it should not be assessed whether or not the written or verbal message is a hate-speech that provokes an environment conducive to violence by calling for and inciting and encouraging to violence, or inviting to armed resistance and rebellion, or creating a meaningless hatred that generates aggressive emotions; instead, if there is a direct or indirect call for violence, it should be subjected to the clear and present danger test, which questions elements such as the identity and position of the suspect and the date and place of the speech.”

Adding a criterion that has already been included in case-law, and which is unnecessary to be mentioned in terms of law-making technique, may be considered as a clear “legislative warning” to prevent unlawful judgments. In fact, in 2008, with similar motives, a clause that read “expressions of opinion aimed at criticism do not constitute crime” was added to Article 301 of the Turkish Penal Code (TCK), which criminalizes “degrading the Turkish nation, the State of the Turkish Republic, the organs and institutions of the State” — one of the most frequently applied provisions against expressions of opinion at the time.

Although it is paradoxical, explicitly stating in Article 7/2 of the Anti-Terror Law that expressions of opinion that amount to “criticism” and “giving information” would not constitute crime so as to prevent widespread judicial practice that is against the wording of the law can certainly be seen as a positive development.

As a matter of fact, following the amendment, a number of judgments in favor of the defendants have been rendered in trials where the charges were based on Article 7/2 of the Anti-Terror Law.

For instance, the convictions of Mustafa Kara, İsmail Gökhan Bayram and Gökhan Çetin, the former executives of Hayatın Sesi TV, which was shut down through a statutory decree during Turkey’s state of emergency, was reversed by the 27th Criminal Chamber of the Regional Court of Justice. In 2018, all three were sentenced to 3 years and 9 months in prison for “systematically making propaganda for terrorist organizations (ISIS, Kurdistan Freedom Hawks, Kurdistan Workers Party).” The Regional Court of Justice reversed the trial court’s verdict and ruled that all three should be acquitted on the grounds that “a full conscience could not be reached that the limits of giving information have been exceeded.” Clearly, the finding in the appellate court’s verdict that “the limits of giving information have not been exceeded” should have led to their acquittal before the legislative amendment. However, it can still be said that the amendment has expanded the courts’ ability to freely interpret matters.

Nevertheless, despite Article 7/2 of the Anti-Terror Law being one of the most critical problems with regard to cases concerning freedom of expression and the press, it is clear that the recent amendment to this provision alone will not be sufficient.

Cumhuriyet and Sözcü trials

As can be seen in the trials against the columnists and editors of Cumhuriyet and Sözcü newspapers, the judiciary sees accusing the newspapers and journalists with “aiding a terrorist organization” over their editorial policy as a shortcut. Having established a transitive relation between the acts of “propaganda” and “aiding and abetting,” the judiciary has been frequently applying these provisions against news reports and articles by columnists.

In the Cumhuriyet trial, convictions for “aiding a terrorist organization” had been reversed by the Supreme Court of Appeals before the Judicial Reform Package went into force. However, at the retrial, which took place after the Judicial Reform Package came into force, the trial court resisted the Supreme Court of Appeals judgment and convicted the majority of the defendants — which demonstrated that the amendment in the provision concerning  “propaganda” has had a very limited contribution to broadening press freedom.

In the Sözcü trial, after the Judicial Reform Package came into force, the court granted the prosecution — who was seeking convictions for the newspaper’s columnists and editors of “aiding a terrorist organization” — additional time to reassess their final opinion in light of the reform package. Considering the fact that the prosecutor accused the defendants of not “propaganda” but “aiding a terrorist group,” holding news reports and articles published in the newspaper as evidence, it is difficult to predict the result of the prosecutor’s “reassessment.” [This analysis was written before the final hearing of the Sözcü trial. At the December 2019 hearing, the prosecutor reiterated their original final opinion and the court convicted seven of the nine defendants as charged.]

Moreover, the lack of an explicit statement in the provision criminalizing “aiding a terrorist group” — akin to the one added to the provision criminalizing “propaganda” — may lead to a frequent use of the crime of “aiding a terrorist group” in the future to punish journalism, commentary, or other expressions of opinion, just like in the Cumhuriyet and Sözcü trials.

These two trials demonstrate that in an environment where problems related to the independence of the judiciary have not been solved; law enforcement continues to work in accordance with the government’s agenda; and where a fair trial is not guaranteed, even adding such explicit statements to provisions cannot help solve the problem.

The right to appeal for crimes of thought

The amendment provides the right to appeal for certain crimes of thought which have been punished with prison terms of five years or less and were therefore finalized once they were upheld by regional courts of appeal. According to the relevant provision, even if a defendant is sentenced to less than five years for the crimes of “insult, threat with the intention of causing fear and panic among the public, provocation to commit a crime, praising a crime and criminal, incitement to hatred, hostility or degrading the public, provocation to disobey the law, insulting the President of the Republic, degrading the symbols of State sovereignty, degrading Turkish Nation, State of the Turkish Republic, the organs and institutions of the State, armed organization, discouraging people from performing military service, publishing statements by terrorist organizations, making propaganda for a terrorist organization, and violating the Law on Assembly and Public Demonstrations,” they now have the right to appeal the verdict before the Supreme Court of Appeals.

This amendment came at issue when defendants who were sentenced to less than five years in the Cumhuriyet trial for “aiding an armed organization” were sent to prison.

In this trial, the court of first instance sentenced Akın Atalay to 7 years, 13 months and 15 days; Orhan Erinç to 6 years and 3 months; Murat Sabuncu and Ahmet Şık to 7 years and 6 months; Bülent Utku to 4 years and 6 months; Aydın Engin to 7 years and 6 months; Hikmet Çetinkaya to 6 years and 3 months; Güray Öz, Musa Kart, Hakan Kara, Mustafa Kemal Güngör and Önder Çelik to 3 years and 9 months; Emre İper to 3 years, 1 month and 15 days of imprisonment for “aiding a terrorist organization without being its member.”

According to the law in force at the time, defendants Musa Kart, Güray Öz, Mustafa Kemal Güngör, Hakan Kara and Önder Çelik, who had been sentenced to less than 5 years of imprisonment, were sent to prison after their conviction was finalized by the regional court of appeal as they had no right to appeal with the Supreme Court of Appeals.

The defendants in the same case who had been sentenced to heavier imprisonment were not sent to prison as they were entitled to appeal, but their co-defendants who received lighter sentences were sent to prison, resulting in an absurd picture. Because when the Supreme Court of Appeals reversed the convictions against the defendants who were sentenced to more than 5 years, others who received less than 5 years of imprisonment served time in prison “for nothing.”

Government authorities, especially the Ministry of Justice, also accepted this contradictory situation and made a statement that they will undertake all necessary legislative efforts. However, because the government was late in taking action to eliminate this injustice, Cumhuriyet staffers had to serve 5 months in prison. Yet, before the Judicial Reform Package entered into force, they were released with the decision of reversal of the conviction of the other defendants delivered by the Supreme Court of Appeals.

Since the amendment stipulates that the appeals against the final decisions must be made within 15 days after its entry into force, this period expired on 7 November 2019.

Many people who had been imprisoned for this crime were released after the amendment, including former HDP MP Sırrı Süreyya Önder, Yeni Yaşam columnist Hüseyin Aykol, Cumhuriyet staff member Emre İper and journalists Meltem Oktay, Uğur Akgül and İdris Yılmaz.

On the other hand, although the amendment led to the release of many, it was also seen as an attempt to hamper the review of the European Court of Human Rights (ECtHR) on trials about freedom of expression. The Constitutional Court had been abstaining from adjudicating on individual applications lodged after the final decision of regional courts of appeal. Since the applications had been pending before the Constitutional Court for many years, the applicants would almost be allowed to apply directly to the ECtHR on the grounds that the Constitutional Court had ceased to be an effective domestic remedy.

The provision of the right to appeal before the Supreme Court of Appeals absolved the Constitutional Court from its promptness in making a decision about the applications that are highly likely to result in finding of a violation, especially ones that concern the crime of “insulting the president” and deferred the applications to be brought before the ECtHR. (For a detailed analysis, please see https://www.dusun-think.net/wp-content/uploads/2019/11/IFOD_Yargi_Reformu_Degerlendirmesi.pdf)

Blocking access to internet

The Law on Regulation of Publications on the Internet and Combating Crimes Committed by means of such Publications was amended as well. 

Accordingly, rulings on blocking access to websites will be given with a method of blocking access to content in relation to the publication, section, chapter where rights have been violated. However, in situations where blocking access to a content that violates rights cannot be done due to technical issues or a violation cannot be halted by blocking access, the judge may rule that all access to everything published on the website in question must be blocked.

Detention periods

Based on the amendment, detention periods in the investigation stage cannot exceed 1 year in cases within the jurisdiction of assize courts and 6 months in others outside that jurisdiction. 

In crimes against state security, constitutional order and its functioning, national defense, state confidentiality and espionage, and crimes in the Anti-Terror Law and collective crimes, this period can be extended to 2 years.

Minors who are under the age of 15 when they committed a crime can be detained for up to 6 months in cases within the jurisdiction of assize courts and 3 months in others outside that jurisdiction. For minors who are between the ages of 15 and 18, these periods can be 4-and-a-half and 9 months. 

Authorization of public prosecutors to postpone opening a case

Along with the amendment, even if sufficient doubt exists, public prosecutors can decide to postpone launching a case for 5 years for crimes with an upper limit of 3 years or less imprisonment. Complainants or suspects can object these decisions. This authorization cannot be exercised for crimes that are within the scope of conciliation, crimes of establishing, managing or becoming a member of organizations for the purpose of committing crimes, crimes committed within the framework of organizational activities, crimes committed by and against public officers due to their duty, military crimes committed by soldiers, and crimes against sexual integrity. 

Indictments with “insufficient evidence”

Courts have been granted broader powers to return indictments in order to prevent public prosecutors from filing indictments without collecting sufficient evidence. Accordingly, “indictments filed without collecting available evidence that has a direct effect on the certainty of a crime” can be returned. As to the crimes that are subjected to permission to be investigated or prosecuted (including the crime of insulting the president), the indictments filed without requesting or obtaining a permission can be returned as well.

Green passport for lawyers

During the process of drafting the Law No. 7188, issuing a green passport for lawyers was one of the most stressed topics by the Union of Turkish Bar Associations, who announced their cooperation with the Ministry of Justice. In this regard, the Law No. 5682 on Passports was amended by adding the sentence of “the lawyers who are registered to a bar with at least 15 years of seniority can hold special (green) passport.” However, the amendment also provided some exceptions to the rules for issuing green passports to lawyers. Accordingly, lawyers who are being investigated or prosecuted for crimes against state security, constitutional order and its functioning, national defence, state confidentiality and espionage, and ones within the scope of the Anti-Terror Law, cannot hold a green passport even if they have seniority of 15 years.

The rules and procedures for issuing a green passport to the lawyers will be determined by the Interior Ministry with a regulation after receiving opinions from the Ministry of Foreign Affairs and the Ministry of Justice.

Introducing restrictions for lawyers who are not convicted with a final court decision or not regarded to be imposed measures to ban their international travel will result in a significant number of lawyers not being able to benefit from this regulation.

Considering the recent increase in the number of investigations initiated against dissident lawyers on charges of “being a member of or aiding an armed organization” because of their expressions of their opinion or their ties with clients it is not possible to say that concerns that the regulation will cause significant loss of rights are groundless.

Legal profession entrance examination

The amendment stipulated the requirement of being successful in the Legal Profession Entrance Exam to become a lawyer or notary, more precisely, to start an internship in these professions.

Passing the Legal Profession Entrance Exam was held as a prerequisite to take the exam for judicial judgeship. Also, passing the Pre-Examination of Administrative Judiciary was held as another prerequisite to take the exam for the administrative judgeship.

Graduates of law faculties and those who graduated from a foreign law faculty and then received equivalency in Turkey will be able to take the Law Profession Entrance Exam. Those who have at least four years of higher education in political sciences, administrative sciences, economics and finance, where receiving a sufficient legal education is possible and graduates of foreign educational institutions, whose equivalence is accepted in those majors, will be able to take the Pre-Examination of Administrative Judiciary.  

The Law Profession Entrance Exam will be held at least once, whereas the Pre-Examination of Administrative Judiciary will be held twice a year. The exams will be organized by the Measuring, Selection and Placement Center (ÖSYM) according to a protocol to be signed with the Ministry of Justice. At least 70 out of 100 points will be considered successful in the exams, which will be in the form of a test.

The procedure of the exams will be regulated by the Ministry of Justice by taking the opinions of the Council of Judges and Prosecutors (HSK), the Council of Higher Education (YÖK), the Union of Turkish Bar Associations and the Notaries Union of Turkey.

Those who were registered to the relevant higher education institutes after 25 October 2019, the date of the amendment’s entry into force, can take the exam. In other words, the first exam can be held in 2025 at the earliest.

Considering the fact that despite all measures taken by the ÖSYM in the past incidents of organized cheating and stealing of exam questions happened in many examinations, especially those for judgeship and prosecution, current concerns for the Legal Profession Entrance Exam can be considered normal. Lastly, even in the Conciliation Examination held in November 2019 there was a lot of speculation, which increases the level of concern about the exams.

Training of judges and prosecutors and their entrance to legal profession

Along with the amendment, there will be questions about labor law in the exams for judgeship and prosecution, and also the structure of the board that conducts interviews with future judges and prosecutors will be rearranged. Accordingly, the number of the Interview Board was increased to seven from five, by adding the General Secretary of HSK and another member from the Advisory Committee of the Justice Academy of Turkey.

The entirety of the board’s members will again be selected by the current political power, as its was before. In the face of the fact that some religious movements still had control over exams of judgeship and prosecution that were held after the July 15 failed coup for the replacement of the positions vacated after the revelation of a Fetthullahist organization prevailed in the judiciary, it can easily be said that the amendment will not change this situation.

Following the amendment, future judges and prosecutors will be trained by the Justice Academy of Turkey (TAA), which will also hold the written exam for judges and prosecutors for their appointment. This exam was previously held by the Department of Training. In addition, the oral examination board will be chaired by the President of the Justice Academy instead of the Head of Department of Training.

The judges and prosecutors who provide training and those appointed as lecturers at the Academy will be paid when they work over 10 hours a week.

Members of the Supreme Court of Appeals and the Council of State, judges, prosecutors, lawyers, notaries and experts who were assigned to provide training in the academy will also be paid for each course they teach.

New trial procedure: Accelerated trial procedure

The amendment introduced the “accelerated trial procedure,” which will be applied in certain charges such as trespass, intentionally endangering public safety, endangering traffic safety, causing noise, counterfeiting money, destruction of a seal, providing false information in the course of issuing an official document, providing an environment or the means for gambling, using another’s identity card or information, charges in the Law on Firearms, Knives and Other Tools, the Forest Law, the Law on Roulette, Tilt, Table Soccer and Similar Game Tools and Machines, and Cooperatives Law. 

In order for this procedure to be applied, the suspect will have to accept the proposal of the prosecutor and the court will have to approve the implementation of this procedure. Where the suspect accepts the proposal, the prosecutor will impose sanction “by applying a remission to be in the ratio of the half of the main penalty to be determined between the upper and lower limit of the punishment prescribed by law.” For example, if this procedure is applied for a charge with a term of imprisonment of 1 to 3 years, the prosecutor would determine 6 months of imprisonment. Reprieving of the imprisonment and converting it into a fine will be possible. The court that takes the statement of the suspect will make the conclusive decision on the sanction. 

This procedure, which enters into force on 1 January 2020, will not be applied to minors, mentally deranged, and deaf-mute people. 

Simple trial procedure

Another procedure introduced by the amendment is the “simple trial procedure,” which also enters into force on 1 January 2020. Accordingly, criminal courts will be able to implement this procedure after the admission of the indictments for charges with a judicial fine or a maximum of 2 years of imprisonment. 

According to the procedure, courts will be able to make a decision based on written submissions by the parties without holding a hearing. In cases where a conviction is given, a quarter of the final prison sentence will be reprieved. These decisions can be appealed. This procedure will not be applied to minors, mentally deranged, and deaf-mute persons, and for charges that are subject to permission or complaint to be prosecuted. If a crime within this scope is committed through another crime that is outside this scope, this procedure will not be implemented. 

Conclusion

The amendment, which the government said was drafted in accordance with the objectives declared in the Judicial Reform Strategy Document, is far from providing solutions to the fundamental problems of Turkey’s judiciary. Instead, it addresses several defects in the judicial system, and introduces some procedures such as “pre-payment, evading trial by accepting a punishment determined by the prosecutor, or courts rendering rulings based on documents in the case file” concerning a number of charges, rather than going to trial. The amendment introduced in the “propaganda” charge in the Law on the Fight Against Terrorism, or new procedures introduced with the reform package, such as the return of indictments, the limitation of detention periods in investigation stage, the right to appeal for crimes of thought including sentences under 5 years, are of a nature that tend to postpone the problems rather than offer solutions, which demonstrates that the amendment falls short of providing a significant improvement in the current problems of the judiciary. 

In conclusion, the amendment, which the authorities said was prepared in accordance with the Judicial Reform Strategy Document announced by President Recep Tayyip Erdoğan, turned out to be an attempt at reducing the heavy workload of the judiciary by non-judicial procedures, rather than improving the judiciary’s conduct, through which fundamental rights and freedoms are being systematically violated.