Government’s draft law to release up to one third of 300,000 prisoners will reportedly not apply to journalists and others convicted of “terrorism” crimes

 

The Turkish government is set to introduce in Parliament a draft law that will reportedly lead to early release of up to 100,000 prisoners from the country’s vastly overcrowded prisons amid growing concerns over the risk the COVID-19 pandemic poses to staff and inmates.

Though the content of the draft law is yet to be finalized or officially made public, media outlets have widely reported that it excludes those convicted of terrorism crimes, meaning thousands including journalists, lawyers, politicians and others who are kept behind bars for expressing political opposition will be denied early release despite grave health risks now posed by the pandemic.

The draft law, reportedly a part of the government’s Judicial Reform Strategy unveiled last summer, is expected to be passed in Parliament within days after consultations with other political parties. It lowers time to be served from ⅔ to half of the sentence before one can become eligible for release on parole and increases the time sentences can be served on parole. Pregnant women and prisoners over 60 with documented health issues will be released to house arrest.

There are close to 300,000 prisoners in prison facilities across Turkey and overcrowding already significantly hinders access to nutrition, cleaning and medical treatment.

According to Platform for Independent Journalism’s (P24) tally, there are now 102 journalists and media workers behind bars. Many of them are charged with or convicted of terrorism crimes without evidence indicating they resorted to violence, incited violence or assisted violent acts of illegal organizations. They include Ahmet Altan, who has recently turned 70, former Zaman columnist Mümtazer Türköne, 64, who battles clogged arteries, and Aziz Oruç who reports chronic health conditions. Others such as Kurdish politician Selahattin Demirtaş and businessperson and civil society figure Osman Kavala have been behind bars for years on various and often shifting charges related to terrorism or subversion.

Their trials are also marred by blatant violations of fair trial rights. Growing number of inconsistent decisions rendered by courts in their trials and repeated violations of even the most well-established fair trial guarantees stoke concerns over independence of judges and whether decisions for their release and continued detention are a matter of political, rather than legal, considerations. In fact, many in especially politically sensitive cases are seen more as “hostages” than mere defendants.

Independence of judiciary has deteriorated significantly in recent years, in particular in the aftermath of the state of emergency that was effective from July 2016 to July 2018. Certain emergency decrees that undermined safeguards for a fair trial were made into law after the state of emergency was lifted, while in 2017, a constitutional amendment made it possible for the president and parties controlling parliamentary majority to appoint all of the 13 members of the Council of Judges and Prosecutors (HSK) — as opposed to members formerly being elected by judicial bodies. Public statements by political authorities that disregard the independence of the judiciary and powerful campaigns by pro-government media targeting figures who are on trial also take their toll on capacity of the judges to act independently.

In her report issued in February 2020, following her July 2019 visit to Turkey, Council of Europe Commissioner for Human Rights Dunja Mijatović asserted that the judiciary in Turkey appeared to be “giving increasingly uniform and partisan judgments strongly implying a political motivation.”

The report added: “Disregard within the judiciary of the most basic principles of law necessary to have a system of rule of law, such as presumption of innocence, non-retroactivity of offences, not being judged for the same facts twice, as well as legal certainty and foreseeability of criminal acts, has reached such a level that it has become virtually impossible to assess objectively and in good faith whether a legitimate act of dissent or criticism of political authority will be re-interpreted as criminal activity by Turkish prosecutors and courts.”

Following is a summary of key trials that stand out as examples of the violations of rule of law in Turkey.

 

OSMAN KAVALA

Businessperson Osman Kavala was taken into custody on 18 October 2017 at Istanbul’s Atatürk Airport upon returning from Gaziantep following a meeting about a joint project his Anadolu Kültür Inc. was planning to implement with the Goethe Institut. On 1 November 2017, Kavala was referred to a criminal judgeship of peace on the allegation that he had “orchestrated the Gezi Park protests.” He was subsequently jailed pending trial on the charges of “attempting to overthrow the constitutional order” and “attempting to overthrow the government” under Articles 309 and 312 of the Turkish Penal Code (TCK) and sent to the Silivri Prison.

Kavala’s lawyers filed an individual application with the Constitutional Court in December 2017, claiming that his unlawful detention, the restriction of access to the investigation file and the regular reviews of continuation of detention to be held without a hearing before a court violated his right to liberty and security. Kavala’s lawyers also filed an individual application with the European Court of Human Rights on 8 June 2018.

It later became clear that two separate investigations had been launched against Kavala, one in connection with the Gezi Park protests and the other with the 15 June 2016 coup attempt, although the latter did not immediately evolve into a legal proceeding. The Gezi Park investigation, however, resulted in an indictment, where Kavala and 15 others were accused of “attempting to overthrow the government of the Turkish Republic” under Article 312 of TCK. The indictment dated 19 February 2019 was accepted on 4 March 2019 by the 30th High Criminal Court of Istanbul.

On 22 May 2019, about a month before the first hearing of the Gezi Park trial, the Constitutional Court’s Plenary rejected Kavala’s individual application through a majority vote of 10 to five.

HSK replaces judges on court panel

The first hearing in the Gezi Park trial took place on 24-25 June 2019 in a courtroom near the Silivri Prison complex. The judges who oversaw the first two hearings of the trial on 24-25 June and 18 July were removed from the case by the HSK. The presiding judge Mahmut Başbuğ had written a dissenting opinion in the interim ruling issued at the end of the fist hearing that Kavala should have been released pending trial under house arrest. On 29 July, the HSK appointed a second panel of judges to the 30th High Criminal Court of Istanbul and assigned two judges from the new panel with the Gezi Park trial: Galip Mehmet Perk replaced Başbuğ as the presiding judge of the first panel and Talip Ergen replaced one of the judges. Judge Ahmet Tarık Çiftçioğlu, who voted for the continuation of detention of both Kavala and Yiğit Aksakoğlu, the second jailed defendant in the case, remained on the panel overseeing the Gezi park trial.

Kavala’s detention extended despite ECtHR judgment

On 10 December 2019, the ECtHR ruled that Kavala’s pretrial detention and trial were politically motivated and constituted a rights violation and called on Turkey to immediately release Kavala. However, the trial court refused to release Kavala despite the ECtHR’s judgment in the next two hearings that followed in December 2019 and January 2020, saying the ECtHR’s judgment was not final.

On 6 February 2020, the prosecution submitted their final opinion of the case, asking the court to convict Kavala and two of his co-defendants, Yiğit Aksakoğlu and Mücella Yapıcı, of “attempting to overthrow the government through force and violence” under TCK Article 312, seeking aggravated life imprisonment for all three. The prosecutor also requested the continuation of Kavala’s detention, citing “flight risk.”

At the end of the final hearing of the trial on 18 February 2020, in a highly unexpected move, the court panel acquitted Kavala and eight other defendants in the case of all charges and ordered Kavala’s release.

Kavala re-arrested on coup charge 24 hours after being released

Several hours after he was acquitted in the Gezi Park trial, a new arrest warrant was issued for Kavala. Upon leaving the Silivri Prison, Kavala was taken into custody and brought to the Istanbul Police Department. It became clear later that night that Kavala was arrested as part of the investigation in connection with the 15 July 2016 coup attempt, for which a release order had been issued for Kavala on 11 October 2019. After spending one day in custody, he was referred to a criminal judgeship of peace on 19 February 2020, which ordered his imprisonment on the charge of “attempting to overthrow the constitutional order” under TCK Article 309.

The same day, the HSK ordered an inquiry against the judges of the 30th High Criminal Court of Istanbul, who acquitted Kavala and his eight co-defendants.

“Espionage” charge

On 9 March 2020, one day before Turkey objected to the ECtHR’s judgment concerning Osman Kavala, the Istanbul Chief Public Prosecutor’s Office filed new charges against Kavala in the coup investigation, citing new evidence, alleging that Kavala’s mobile phone sent signals from the same cellular base station as US academic Henri J. Barkey’s mobile phone on the same day, and that Barkey and Kavala came together at a restaurant several days after the 2016 coup attempt. The alleged “evidence” was based on testimony by an employee of a hotel in Istanbul where Barkey allegedly was staying during the time of the attempted coup.

The prosecution asked the criminal judgeship of peace on duty to imprison Kavala pending trial based on “new findings from additional research suggesting that Barkey did intelligence work for foreign governments.”

Several days before the new imprisonment order, Kavala’s lawyers objected to his detention on remand, asserting that the period of maximum detention on remand for their client was about to expire as per the amendments introduced with the 1st judicial reform package.

On 9 March 2020, the prosecution referred Kavala to Istanbul’s 10th Criminal Judgeship of Peace for imprisonment pending trial on the charge of “political or military espionage” under Article 328 of TCK. Kavala addressed the judgeship from the Silivri Prison via the judicial video-conferencing system SEGBİS. After hearing Kavala’s statement in response to the new allegation, the judgeship ruled for Kavala’s imprisonment pending trial, citing “strong suspicion of crime.”

On 20 March 2020, another criminal judgeship of peace ruled for Kavala’s release on the charge of “attempting to overthrow the constitutional order” due to the expiry of the two-year maximum pre-trial detention period for the initial charge. Despite the ruling by the Istanbul 3rd Criminal Judgeship of Peace, Kavala remained in detention on remand on the charge of “political and military espionage.”

AHMET ALTAN

Novelist and journalist Ahmet Altan was arrested on 10 September 2016 on the charges of “attempting to overthrow the constitutional order,” “membership of a terrorist organization” and “disseminating terrorism propaganda” over his political commentary during a program that aired one day before the atttempted coup in 2016. Altan was accused of “giving subliminal messages.”

Istanbul’s 10th Criminal Judgeship of Peace ruled to release Altan pending trial on 22 September 2016 under judicial control measures. However, less than 24 hours later, Altan was imprisoned pending trial when the prosecutor objected to his release.

Altan’s lawyers filed an individual application with the Constitutional Court on 8 November 2016. Citing lack of action from the Constitutional Court, they filed an application with the European Court of Human Rights on 12 January 2017.

The indictment against Ahmet Altan, his brother, columnist and professor of economics Mehmet Altan, journalist Nazlı Ilıcak and 14 others sought three aggravated life sentences on the charges of “attempting to overthrow the constitutional order,” “attempting to overthrow the parliament” and “attempting to overthrow the government” under Articles 309, 311 and 312 of TCK and additional prison terms of up to 15 years on the charge of “aiding a terrorist organization without being its member.”

Submitting their final opinion of the case on 11 December 2017, the prosecutor requested the court to sentence Ahmet Altan and five of his jailed co-defendants to aggravated life imprisonment for “attempting to overthrow the constitutional order” under TCK Article 309/1. Issuing its verdict on 16 Febraury 2018, the trial court sentenced Altan and five of his co-defendants as per the prosecutor’s request.

The 2nd Criminal Chamber of the Istanbul Regional Court of Justice rejected the appeal against the convictions on 2 October 2018.

On 3 May 2019, the Constitutional Court’s Plenary rejected Ahmet Altan’s individual application, finding no rights violations in his file.

On 5 July 2019, the 16th Criminal Chamber of the Supreme Court of Appeals overturned the convictions of Ahmet Altan and five of his co-defendants in the case, ruling that Ahmet Altan should have been charged with “aiding a terrorist organization without being its member” instead of “attempting to overthrow the constitutional order.”

Retrial and maximum sentence

The retrial of Ahmet Altan and his co-defendants began on 8 October 2019 at the 26th High Criminal Court of Istanbul. On 4 November 2019, the court rendered its verdict and sentenced Altan to 10 years and 6 months in prison for “aiding a terrorist group without being its member,” a sentence close to the maximum penalty specified in TCK Article 220/7 for this offense. The trial court also ruled to release Altan considering the time he spent in pretrial detention. Altan was released the same day from the Silivri Prison, where he remained in pre-trial detention for over three years.

Prosecutor’s objection and rearrest

Two days after Altan’s release, on 6 November 2019, the prosecution objected to the trial court’s release order. When the 26th High Criminal Court rejected the prosecutor’s objection, the next court of first instance, the 27th High Criminal Court of Istanbul, ruled on the objection and issued an arrest warrant for Altan on 12 November 2019. The court did not formally notify Altan’s lawyers of the arrest order, instead, the order was made public later that day by the pro-government Sabah daily.

Altan was arrested later that night at his house in Istanbul and taken to the Istanbul Police Department. He appeared before a court the next day and was subsequently imprisoned and sent to the Silivri Prison.

Ahmet Altan’s individual application dated 12 January 2017 is still pending before the European Court of Human Rights.

SELAHATTİN DEMİRTAŞ

Selahattin Demirtaş and Figen Yüksekdağ, the former co-chairs of the Peoples’ Democratic Party (HDP), and nine other lawmakers from the HDP were taken into custody on 4 November 2016 on allegations of “establishing a criminal organization,” “membership of a terrorist organization,” “membership of an armed terrorist organization” and “committing crimes on behalf of a criminal organization.” Demirtaş was jailed pending trial on these charges the same day by a Criminal Judgeship of Peace on duty and sent to the Edirne F Type Prison.

Demirtaş is accused on account of his remarks in HDP’s public statements, rallies, speeches he delivered during public gatherings organized by various institutions, during his speeches at the Parliament. He is facing a total of 33 separate cases launched in various provinces across Turkey and a combined prison sentence of up to 142 years in all these cases. Separate case files against Demirtaş were merged with the main case against him, overseen by the 19th High Criminal Court of Ankara.

On 7 September 2018, the 26th High Criminal Court of Istanbul sentenced Demirtaş to 4 years and 8 months in prison for “disseminating terrorism propaganda” over his remarks during a speech he delivered at the 2013 newroz celebration in Istanbul.

Sentence upheld, vacating European Court judgment

Ruling on Demirtaş’s application on 21 November 2018, the European Court of Human Rights held that his lengthy pre-trial detention was politically motivated and called on Turkey to take all necessary measures to put an end to his pre-trial detention.

Commenting on the ECtHR judgment, President Recep Tayyip Erdoğan said at the time that the Strasbourg court’s ruling was not binding for his administration. Soon after Erdoğan’s remark, on 4 December 2018, a regional court of justice upheld Demirtaş’s sentence for “disseminating terrorism propaganda,” turning Demirtaş’s status from “in detention on remand” to “convicted” and bypassing the ECtHR’s judgment.

Release order and re-arrest

On 2 September 2019, the 19th High Criminal Court of Ankara ruled for Demirtaş’s release in the main trial, however, Demirtaş was not released since his conviction in the Istanbul case had been upheld.

Demirtaş’s lawyers filed for their client’s release under probation, requesting the deduction of the time he has served in detention on remand from the penalty upheld by the regional court of appeals.

The Istanbul 26th High Criminal Court, which sentenced Demirtaş to 4 years and 8 months in prison, accepted the lawyers’ request on 20 September 2019, however, the Ankara Chief Public Prosecutor’s Office requested the re-arrest of Demirtaş and Yüksekdağ, citing allegations in connection with 2014’s Kobani protests from a different case file that had been merged with the main trial. Both Demirtaş and Yüksekdağ were subsequently re-arrested on 20 September 2019 by Ankara’s 1st Criminal Judgeship of Peace.

“FETÖ MEDIA” TRIAL

The trial publicly known as the “FETÖ media trial,” where 29 defendants, the majority of whom were journalists, were charged with “membership of Fethullahist terrorist organization (FETÖ),” got under way in March 2017. During the hearing on 31 March 2017, the prosecutor asked the court to release 13 of the defendants in the case pending the conclusion of the trial. In its interim ruling, the trial court accepted the prosecutor’s request and also ruled to release an additional eight defendants under judicial control measures, releasing 21 of the 26 jailed defendants in total. The court ruled to keep defendants Davut Aydın, Emre Soncan, Mutlu Çölgeçen, Ufuk Şanlı and Ünal Tanık in pretrial detention.

Re-arrest on coup charge

However, 13 journalists — Abdullah Kılıç, Ali Akkuş, Atilla Taş, Bünyamin Köseli, Cihan Acar, Gökçe Fırat Çulhaoğlu, Hüseyin Aydın, Murat Aksoy, Mustafa Erkan Acar, Oğuz Usluer, Seyit Kılıç, Yakup Çetin and Yetkin Yıldız — were arrested right after their release as part of a separate “coup” investigation launched by the Istanbul Chief Public Prosecutor’s Office.

In the meantime, the eight other defendants who were released by the trial court — Ahmet Memiş, Bayram Kaya, Cemal Azmi Kalyoncu, Cuma Ulus, Habib Güler, Halil İbrahim Balta, Hanım Büşra Erdal and Muhammet Said Kuloğlu — were also re-arrested after the prosecutor objected to their release.

Judges suspended

Several days later, the judges of the 25th High Criminal Court of Istanbul and the trial court prosecutor were temporarily suspended by the HSK.

A new indictment issued by Istanbul Chief Public Prosecutor İrfan Fidan against the 13 journalists who were rearrested on “coup” allegations sought two aggravated life sentences for all 13 on the charges of “attempting to overthrow the constitutional order” and “attempting to overthrow the government.” During the first hearing of this case that took place in August 2017, the trial court ruled to merge the new indictment with the ongoing “FETÖ media trial” and also ruled to release defendants Bünyamin Köseli and Cihan Acar under judicial control measures.

Coup charge dropped

The prosecution submitted their final opinion at the hearing that took place on 6 February 2018, after the joinder of the two cases, asking the court to drop the additional “coup” charge against 13 defendants. The prosecutor asked the court to convict Murat Aksoy, Gökçe Fırat Çulhaoğlu and Muhterem Tanık of “aiding FETÖ/PDY without being its member” and the rest of the defendants of “membership of FETÖ/PDY.”

At the final hearing of the trial on 8 March 2018, the 25th High Criminal Court of Istanbul sentenced 11 journalists to 7 years and 6 months in prison and 12 others to 6 years and 3 months for “membership of a terrorist group” while Atilla Taş and Murat Aksoy were respectively sentenced to 3 years 1 month and 15 days and 2 years and 1 month for “aiding a terrorist organization without being its member.”

On 22 October 2018, the 2nd Criminal Chamber of the Istanbul Regional Court of Justice rejected the appeal against the convictions and upheld the trial court’s verdict.

The case file was then referred to the Supreme Court of Appeals. The Office of the General Prosecutor of the Supreme Court of Appeals submitted their judicial opinion of the case on 10 December 2018, asking the 16th Criminal Chamber of the Supreme Court of Appeals to uphold the convictions in the case. The case has been pending before the Chamber since 31 January 2019.

While the Chamber has yet to adjudicate on the entirety of the case file, the court overturned Ali Akkuş’s conviction on 13 March 2020, ruling for his release on probation. Akkuş is one of the 11 journalists sentenced to 7 years and 6 months in prison as part of the case.