At the 7-9 June 2021 meeting of the Committee of Ministers, the ECtHR judgments against Turkey that found violations of freedom of expression, many of which have not been implemented for years, were once again on the agenda
Turkey’s legislation and practices in the field of freedom of expression and the press have long been a decisive factor in its relations with the bodies of the Council of Europe as a member State and the European Court of Human Rights (the ECtHR or the Court).
Due to the broad and vague interpretation and application of criminal laws, especially the Turkish Penal Code (TCK) and the Anti-Terror Law (TMK) by prosecutors and judges in violation of the ECtHR criteria, the Court regularly decides against Turkey for violations of freedom of expression. In 2020 alone, the ECtHR rendered 31 judgments against Turkey, finding violations of freedom of expression. Thus, Turkey has violated freedom of expression more than any other 46 member states of the Council of Europe, with a total of 387 judgments of freedom of expression violation issued against it as of 2020.
The main bodies of the Council of Europe, including the Council of Europe’s Commissioner for Human Rights and the Parliamentary Assembly of the Council of Europe, have stated in their opinions and reports about Turkey that one of the most important problems encountered in the field of democracy, the rule of law and human rights have concerned freedom of expression and the press; that politicians, journalists, rights defenders and academics have systematically faced investigations, prosecutions, heavy prison sentences and judicial harassment due to their dissenting views, and that criminal laws have been used to silence and punish dissidents.
One such body is the Committee of Ministers of the Council of Europe, which supervises the execution of judgments of the ECtHR. In its latest session on 7-9 June 2021, the Committee of Ministers discussed the ECtHR judgments that had been issued against Turkey but were pending before the Committee since they had not been implemented for many years. In respect of the judgments where the Court found violations regarding the groups of cases Öner and Türk v. Turkey, Nedim Şener v. Turkey, Altuğ Taner Akçam v. Turkey, and Artun and Güvener v. Turkey under enhanced supervision, that concerned criminal proceedings under various articles of TCK and TMK, the Committee adopted an interim resolution, which represents a procedurally strengthened phase in comparison with routine decisions taken at Committee meetings. In respect of Işıkırık v. Turkey group, which concerns the application of Article 220/6 and Article 220/7 of the TCK, on the other hand, the Committee of Ministers opted to adopt a routine decision.
In December 2020, as part of the Expression Interrupted project, which aims to monitor Turkey’s compliance with the international standards in the field of freedom of expression, implemented by P24 in partnership with Article 19, we published a report addressing the course of the ECtHR judgments that were pending before the Committee of Ministers and that concerned Articles 220/ 6 and 7, 299, 301, 314 of TCK and the second paragraphs of Articles 6 and 7 of TMK, which are the most frequently mentioned articles in the field of freedom of expression violations, in view of the opinions of the Committee of Ministers of the Council of Europe, the Venice Commission and the Council of Europe’s Commissioner for Human Rights.
The report provided an extensive assessment of the ECtHR judgments regarding the groups Öner and Türk, Nedim Şener, Altuğ Taner Akçam, Artun and Güvener and Işıkırık discussed at the Committee’s meeting held in June, and the course of these groups of cases before the Committee of Ministers. The decisions adopted by the Committee of Ministers at its meeting in June also reveal the developments that took place following the publication of the said report.
The requested information was not provided, legislative changes were not adopted
In its examination of the Öner and Türk, Nedim Şener, Altuğ Taner Akçam, Artun and Güvener groups at its June 2021 session, the Committee of Ministers recalled that Turkey had ranked 153rd out of 180 countries in freedom of the press; that a total of 91 journalists were behind bars at the time, and that serious backsliding occurred in freedom of expression in Turkey due to the criminal cases and the prison sentences initiated to silence the dissenting voices, based on data from the OSCE Representative on Freedom of the Media; Reporters Without Borders (RSF), and Platform for the Protection of Journalism and the Safety of Journalists, as well as the Parliamentary Assembly of the Council of Europe. In view of the insistent reluctance of the Turkish government to show any signs of concrete progress, the Committee of Ministers decided to take action.
The Committee of Ministers stated that the various judgments in relation to the problem of the disproportionate application of criminal laws against people who expressed critical or unfavorable opinions were pending before the Committee for over 20 years; that the authorities failed to provide the relevant information as requested by the Committee despite the large number of similar judgments where the ECtHR found violations, and concerns expressed by the Committee in this regard; that the Committee was not provided with statistical information on the total number of investigations and prosecutions launched specifically against journalists on account of the articles at issue, which was crucial for the Committee to assess the real situation; that the prosecutors and the lower courts continued to apply criminal laws without due regard for freedom of expression despite the exemplary decisions rendered by the higher courts, in particular the Constitutional Court, and that the authorities avoided delivering political messages to ensure the protection of freedom of expression.
The Committee noted that the authorities failed to amend Article 301 of TCK in line with the values enshrined in the European Convention on Human Rights (ECHR) despite the clear case-law of the ECtHR that indicated that the article in question was drafted too broadly for its application to be foreseeable, and the urgent calls of the Committee to amend the provision; to take measures to remedy the violations that resulted from the application of Article 125 and Article 299 of TCK that set out the charges of insulting public officials and the President, respectively, and that Article 299 of TCK was interpreted and applied in an unprecedented manner in comparison with the similar provisions in other member states of the Council of Europe, as suggested by the Commissioner for Human Rights and the Venice Commission.
In reaching this conclusion, the Committee took into account the case-law of the ECtHR establishing that “Heads of State cannot be granted special protection or a privilege solely on account of their function or status,” and the opinions of the international institutions, such as the Commissioner for Human Rights, the Venice Commission and the United Nations Human Rights Committee, indicating that there was a European consensus towards the decriminalization of insulting heads of state.
While it welcomed the Human Rights Action Plan, developed to strengthen freedom of expression, and the release of journalist and novelist Ahmet Altan -- who had been held in pre-trial detention since 2016 -- by the Supreme Court of Appeals following the ECtHR’s judgment of 13 April 2021, which found that his pre-trial detention was unlawful, the Committee decided to adopt an interim resolution against Turkey due to the lack of concrete progress in accordance with the Committee’s decisions.
In its interim resolution, the Committee of Ministers called on the authorities to urgently provide detailed statistical information showing the total number of investigations, prosecutions and convictions for the charges in groups of cases in question in the last five years, and the number of journalists investigated, prosecuted, convicted and held in pre-trial and post-conviction detention, with details of the allegations against them; to amend Article 301 of TCK in the light of the ECtHR’s clear case-law, and to consider legislative changes of the Penal Code and the Anti-Terror Law to ensure the decriminalization of the exercise of freedom of expression; to deliver political messages supporting the good practice of the higher courts, stressing that freedom of expression was valued in Turkish society and that the criminal law could not be used as a tool to restrict freedom of expression; to continue with the training of judges and prosecutors, and to amend Article 125 of TCK and to abrogate Article 299 in accordance with the ECtHR’s established case-law and the European consensus towards the decriminalization of insulting heads of state.
Call for an extensive legislative change
In respect of the Işıkırık group, the Committee stressed that the legislative amendments adopted thus far failed to remedy the main problems with paragraphs 6 and 7 of Article 220 under TCK as identified by the ECtHR; that the decisions of domestic courts failed to substantially address this problem, and that therefore the authorities and domestic courts needed to seek a more extensive legislative solution without further delay.
Thanks to the decisions of the Committee in respect of the Işıkırık group, we have learned that the Constitutional Court has decided to apply a pilot judgment procedure to an application pending before it concerning paragraph 6 of TCK Article 220 to identify whether the application of the said provision posed a structural problem. The Committee invited the authorities to provide information on the conclusions of this application and whether a similar approach would be followed in respect of paragraph 7 of TCK Article 220.
Urging the authorities to provide statistics or other information on the number of persons investigated, prosecuted and sentenced under paragraphs 6 and 7 of TCK Article 220 over the last five years, the Committee also invited the authorities to adopt more concrete measures to address the ECtHR’s findings and to submit an updated action plan, and decided to continue its supervision of this group of cases together with the Öner and Türk group in March 2022, having regard to the similarities in these groups of cases.
Despite the amendments, the judicial reform packages and action plans introduced over the years, Turkey has failed to establish a legislation that complies with the criteria needed to prevent violations of freedom of expression and the press. Prosecutors and judges have continued to abuse the criminal law with investigations, prosecutions, and prison sentences contrary to the established case-law of the ECtHR, especially when it comes to dissidents.
It is only possible to satisfy the conditions sought by the ECtHR and the Committee of Ministers by fully ensuring the independence of the judiciary. For this purpose, the authorities must demonstrate a political will in that regard. If not, it will invalidate all the legislative changes and all the positive steps taken thus far to improve freedom of expression.
* Human rights lawyer