By annulling some articles of the Law no. 7262, the Constitutional Court has partially, and likely temporarily, halted the civil society front of rising authoritarianism. However, given the letter and spirit of the existing legislation on associations that limits the freedom of association by design, the law will continue to be a tool of pressure on civil society in Turkey

 

 

KEREM DİKMEN*

 

According to its publicly announced calendar, the Constitutional Court took up the application by the Republican People’s Party (CHP) for the annulment of some provisions of the Law 7262 on the Prevention of Financing of Weapons of Mass Destruction on 18 January 2024. The court’s judgment regarding this law, which represented a step back for the freedom of association was finally published in the 3 April 2024 edition of the Official Gazette. By annulling some articles of the law which placed state institutions hierarchically above civil society, the Constitutional Court has partially and likely temporarily halted the civil society front of rising authoritarianism. However, given the letter and spirit of the existing legislation on associations that still limits the freedom of association, the law will continue to be a tool of pressure on civil society in Turkey.

 

What had happened?

 

The proposed “Law on the Prevention of Financing of the Proliferation of Weapons of Mass Destruction” was brought before parliament by 52 MPs from the ruling Justice and Development Party (AKP) as the COVID-19 pandemic continued. The apparent aim of this proposed law, commonly referred to as Law no. 7262 due to its numbering, was limited to “regulating the procedures and bases according to which decisions of the United Nations Security Council (UNSC) for the prevention of the financing of weapons of mass destruction would be implemented.” The establishment of the Financial Action Task Force (FATF), with the OECD as its secretariat, and the desire to leave the “gray list” in which Turkey was placed on grounds of deficiencies in combating money laundering, financing terrorism and the proliferation of weapons of mass destruction were the significant arguments on which the proposal rested. That “terrorism” is one of the most important pretexts used by the states with marred human rights records, such as Turkey, to limit human rights and freedoms was enough for it to raise suspicions. Although the proposal was advertised as a new piece of legislation, of the 41 articles other than the temporary articles and the article on entry into effect, only six were new. The remaining 35 were amendments to articles of six other laws, including the Law on Associations.

 

Despite objections from civil society, the proposed law was ratified by the Turkish Parliament with a few changes and entered into effect after it was published in the 5th edition of the Official Gazette dated 31 December 2020. The state’s new year’s gift for civil society was a law allowing for the takeover of civil society organizations' administration by state-appointed trustees. Reactions did not stop when the law came into effect. Joint statements examining the impact of the law on human rights advocacy were published, and the letter sent by the UN Special Rapporteur to the Republic of Turkey said that the law was in breach of human rights and democratic practices. A similar letter was sent to the then Minister of the Interior Süleyman Soylu and then Minister of Justice Abdulhamit Gül by the Council of Europe Human Rights Commissioner. The reply sent to the Commissioner by Minister of the Interior Süleyman Soylu on behalf of the Republic of Turkey was no more than a propaganda text which did not respond to the criticisms made by the Commissioner. While Parliament had ratified the law for the supposed purpose of compliance with regulations brought in by international organizations, the law in fact ended up being criticized by international organizations.

 

What did the law change?

 

In the information note I had prepared for Kaos GL, we shared a summary of the consequences of the proposed law. To repeat:

 

- Those convicted of “certain crimes” were barred from serving on association governing bodies such as boards of directors and auditing boards and if such people were members of governing bodies, their membership would cease automatically.

- Annual risk assessments and audits of associations were made mandatory.

- It was made compulsory for associations to report any aid from overseas beforehand.

- The Minister of the Interior was authorized to remove from office people facing trial for “certain crimes” and the association governing bodies on which they served.

- The Minister of the Interior was authorized to temporarily suspend the activities of associations in the situation described above.

- The Minister of the Interior was authorized to appoint public administrators to governing bodies removed from office.

- The penal provisions in the Law on Associations were expanded, penalties were increased and new penalties were added.

 

The expression “certain crimes” needs to be described for the above points to make more sense. In the law these were limited to “crimes listed under the Law on the Prevention of the Financing of Terorism and crimes concerning the manufacturing of and trade in narcotic and stimulant substances and laundering the proceeds of crime listed under the Turkish Penal Code.” It might appear to be an innocuous list at first. However, once you follow the thread, it is anything but. The law refers to the Law on the Prevention of the Financing of Terorism. Article 3 of that law in turn refers to the Anti-Terror Law and actions described as crimes by this law. The Anti-Terror Law defines a long list from the Turkish Criminal Code as terrorism crimes, including the crime of propaganda, which the European Court of Human Rights has found is structurally incapable of meeting the criterion of legality. These are the articles most used by state authorities who want to punish human rights defenders. The former president of Amnesty International Turkey, human rights defenders put on trial in the Büyükada case, the current co-chair of the Human Rights Association (İHD) and the chair of the Turkish medical association (TTB) have all been facing penal cases. The activities of their associations could have been suspended based on these penal cases. Fortunately, such a step was not taken in practice, despite the letter of the law directly allowing for it.

 

CHP’s case for annulment

 

After the ratification of the law, civil society pinned its hopes on a case for annulment. It was the CHP which took this step soon after the law's ratification. The initial examination of the case for the annulment of some articles of the law brought by the main opposition party before the Constitutional Court was completed at the 18 March 2021 meeting of the court.

 

Two grave mistakes in the CHP application

 

The CHP’s petition can be accessed through the link at the top of the Constitutional Court judgment. Unfortunately, the CHP did not request the annulment of the limitations on holding seats in association governing bodies in article 3 of the law. Therefore, the law can still be interpreted as stating that if the persons we mentioned above are convicted, their membership of association governing bodies will end. This means that people such as Can Atalay, Osman Kavala and Selahattin Demirtaş may not be members of boards of directors or auditing boards of associations as per the law.

 

The CHP also did not request the annulment of the amendment to article 19 of the Law on Associations. This article includes the expression “The relevant regulation governs the form and content of the notification and procedure and basis to be followed for aid sent overseas.” The same expression appeared verbatim in the amendment to article 9 of the Law on Aid Collection. Unlike in its application concerning the Law on Associations, the CHP had requested the annulment of this expression, and the Constitutional Court annulled it. However, because it was not included in annulment application, the expression in article 19 of the Law on Associations remains in effect. Therefore, the transfer of fines abroad, even if they are not for aid purposes, will remain at risk of sanctions from Provincial Directorates for Relations with Civil Society.

 

The CHP did request the annulment of many provisions, some of which were annulled by the Constitutional Court.

 

Which provisions were annulled and what does it mean?

 

The annulment decision may also be accessed on the Official Gazette. The Constitutional Court annulled one provision (30/A) completely and another (19) partially. Part of the annulment of Article 19 includes technicalities, which we will not discuss here. However, the annulled paragraph 5 of Article 19 had the potential of spreading the destructive effects of audits carried out by Directorates for Relations with Civil Society or the Ministry of Interior to other associations not undergoing an audit. The provision “Without prejudice to provisions of specific laws, associations and all kinds of facilities, enterprises and partnering organizations of associations are audited by the relevant ministry and organizations within the limits of their mandate upon the request of the Ministry of Interior or branches of the central administration” was annulled by the Constitutional Court. This provision implied that associations which cooperated under an umbrella organization or on a platform would be automatically audited after one of the member associations was audited. For example, the auditing of any one association that is the member of the Solidarity Network for Human Rights Defenders could have resulted in other members of the platform being audited simply for being members of the platform. While in implementation this provision was not interpreted in this way, officials and some auditors who see associations which advocate for human rights as an enemy of the state could have interpreted it so and expanded the audit of one organization to cover other organizations cooperating with it. Although the judgment for the annulment rests on other grounds, such a risk has been prevented.

 

Annulment of the article on state-appointed trustees

 

Civil society called the Law no. 7262 as the “law for state-appointed trustees to associations” because of article 30/A that it added to the Law on Associations. Due to the “certain crimes” provision described above, the filing of a penal case against someone serving on association's governing bodies could have resulted in that person and other members of the governing bodies being removed from office by a decision taken individually by the Minister of the Interior, the temporary suspension of association activities and the appointment of persons to be identified by the Minister of the Interior to replace those removed from office, even if the penal case did not result in sentencing. Furthermore, the law did not contain any provisions necessitating the Minister of the Interior to rescind the decision for removing from office, even if the persons concerned were acquitted at the end of the criminal case. The “temporary” duration for suspension of activities was also not defined.

 

The Constitutional Court has completely annulled article 30/A on grounds of lack of clarity. In a sense, this means ending the authority of the Minister of the Interior over associations. It means that the Minister of the Interior cannot suspend the activities of associations, remove their governing bodies from office or appoint public administrators based on court cases which it had prepared the grounds for.

 

Caveats

 

The Constitutional Court ruling to annul the provisions does not view the sanctions listed above being included in the law as a problem. According to the Constitutional Court, removal from governing bodies and temporary suspension sanctions meet the criteria for legality and legitimate aim that norms should meet in principle. The court’s decision to annul focuses on the unclear duration of the removal from office sanction; the formulation of the rule to allow for the removal of other members of governing bodies who are not facing criminal cases and the lack of clarity on the outcome of the decision to remove from office in the event of acquittal of persons facing penal cases. Given this reasoning, it is possible for Parliament to formulate a new amendment which addresses solely these points.

 

Because the Constitutional Court has annulled the paragraph on removal from office, it has also annulled the provision authorizing the Minister of the Interior for “temporary suspension of activities,” which it found no longer executable. It is still possible for this second provision to be re-included in the law, if the former is passed into law as described above.

 

The provision authorizing the Minister of the Interior to appoint trustees to run the associations was also annulled. One reason is that it is no longer executable due to the annulment of the first paragraph. However, we can say that the Constitutional Court has blocked the possibility of appointment of trustees permanently with its reasoning put forward for this annulment. The reasoning for the annulment states that if members of a governing body of an organization is removed from office, the authority to appoint a replacement rests with the members of the association. Therefore granting the Minister of the Interior the power to appoint public administrators (through province governors) is a restriction on the freedom of association which does not answer a pressing societal need.

 

Relevant provision on the Law on Misdemeanors annulled

 

The Constitutional Court has also annulled the provision allowing for fining the association without regard for the outcome of a criminal investigation or case on the ground that the “certain crimes” in question had been committed for the benefit of the organization. The Constitutional Court has rightly evaluated this provision to violate the presumption of innocence. In a judicial order in which police reports automatically become indictments, this provision would have allowed for the Ministry of Interior to “usurp” the funds of legal entities. Fortunately, the Constitutional Court has annulled this destructive provision and somewhat alleviated the concerns of civil society.

 

When will the annulment come into effect?

 

As the Constitutional Court has ruled that the annulment will come into effect nine months after its publication in the Official Gazette, the annulment will enter into force as of 3 January 2025. This period may be better interpreted as time allowed to Parliament to produce a new piece of legislation. In other words, this piece of legislation which placed associations under the risk of appointment of public administrators, suspension of activities and the removal from office of members of governing bodies cannot be enforced for now.

 

 

* Lawyer / Kaos GL Human Rights Program Coordinator