How trial courts will proceed with international travel ban orders following the latest amendment to the Criminal Procedure Code and the Constitutional Court’s September 2021 judgment remains to be seen

 

YASİN KOBULAN

 

Press freedom and freedom of expression trials have been hot topics in Turkey, particularly since 2016. In the 2020 report by Freedom House, Turkey was again among “not free countries.” With 32 points out of 100, Turkey ranks 146th in the "freedom" ranking, which includes 195 countries. Journalists, writers and academics, who are subjected to investigations and prosecutions for exercising their freedom of expression, are among those most affected by this situation. Custody, detention and other judicial control measures imposed during the investigation and prosecution stages not only prevent journalists, artists and intellectuals from carrying out their professional activities, but also cause problems in non-professional parts of their lives.

 

Judicial control decisions are regulated in Articles 109-115 of the Criminal Procedure Code (CMK). Judicial control measures such as "house arrest," "electronic handcuffs," "regularly reporting to the nearest police station on certain days" and "international travel ban" are mostly decided by criminal judgeships of peace during the investigation stage, upon the request of the prosecutor's office. During the investigation stage, the judgeships cannot issue judicial control decisions without the public prosecutor’s request. However, in the investigation stage, a suspect, who is referred to the judgeship with a detention request can be brought under judicial control by the judgeship instead of being detained. In the prosecution stage, the authority to impose a judicial control measure passes to the assize court that hears the case against the suspect/defendant.

 

An explicit regulation about the duration of judicial control measures was added to the Criminal Procedure Code No. 5271 with the “Fourth Judicial Package,” which was published in the Official Gazette on 14 July 2021, and which will enter into force on 1 January 2022. According to the regulation, a decision will be made as to whether the suspect or the accused will have to continue the judicial control obligation, by the peace judgeship upon the request of the public prosecutor during the investigation stage, and by the assize court during the prosecution stage, at four-month intervals at the latest.

 

According to the regulation, which limits the duration of judicial control to a maximum of two years in cases that do not fall within the jurisdiction of assize courts, in the situation of force majeure, this period may be extended for another year with a justification. In cases that fall under the jurisdiction of assize courts, judicial control measures can be imposed for a maximum of three years. This period can be extended in situations of force majeure with a justification. The extension period will not exceed three years in total, and four years for crimes falling within the scope of the Anti-Terror Law (TMK).

 

According to the law, the judicial control measure is lifted automatically when the judgment is finalized. During the execution of the finalized judgment, the judicial control provisions related to the prosecution stage cannot be applied.

 

In the prosecution stage, judicial control measures such as “house arrest” or “reporting to the police station” are lifted during the trial; the “international travel ban,” which is the least likely to be lifted by the courts, usually continues until the end of the proceedings in almost all cases.

 

Top court: Violation of rights

 

Although the first instance courts insist on imposing the international travel ban upon the demands of the public prosecutor, there are also judgments in which the Constitutional Court considers this practice a violation of rights. One of these judgments concerns the individual application of Asst. Prof. Latife Akyüz, who was dismissed from her profession for signing the 2016 Academics for Peace declarartion titled "We will not be a party to this crime" and imposed an international travel ban during her trial.

 

In her application, Akyüz stated that with the ban on international travel, she was prevented from continuing her education and training abroad and thus improving her career. Stating that the ban did not have a legitimate aim, did not respond to an urgent social need, and was disproportionate, Akyüz claimed that the right to improve one's existence, safeguarded in Article 17 of the Constitution, and the right to privacy of private life, under Article 20, had been violated.

 

According to Article 17 of the Constitution, “Everyone has the right to life and the right to protect and improve their corporeal and spiritual existence.” According to Article 20 of the Constitution, “Everyone has the right to demand respect for their private and family life. Privacy of private or family life shall not be violated.”

 

Referring to the case law of the European Court of Human Rights (ECtHR), the Constitutional Court ruled on 7 September 2021, some five years after the 4 October 2016 application, that the right to privacy of private life under Article 20 of the Constitution had been violated and that the applicant should be paid TL 13,500 for non-pecuniary damages.

 

The Constitutional Court emphasized that the ECtHR considers the deprivation of a travel document, such as a passport, as a result of a measure taken, as an interference with the freedom of movement guaranteed in the European Convention on Human Rights, in its judgments in the cases of Baumann v. France and Sissanis v. Romania.

 

The Constitutional Court also referred to the ECtHR's Parmak and Bakır v. Turkey judgment: “In the mentioned decision, reiterating that even where a restriction on an individual’s freedom of movement was initially warranted, maintaining it automatically over a lengthy period of time may become disproportionate measure, violating the individual’s rights, the ECtHR established that the domestic courts had failed to reassess the justification of the travel ban, despite the applicant’s repeated applications and had upheld the impugned measure in an automatic manner, and concluded that Article 8 of the Convention had been violated.”

 

In its decision of violation, the Constitutional Court evaluated that Akyüz had strong professional ties with the country she wanted to go to and that the international travel ban on her directly affected her professional life, therefore the interference with the applicant's professional life seriously affected the applicant's private life. The judgment read: “It was concluded that the right to privacy of private life of the applicant, who is an academic, was interfered with by the judicial control decision of the peace judgeship, which imposed an international travel ban on her and prevented his various professional activities such as attending seminars or receiving research scholarships.”

 

In its judgment, the Constitutional Court recalled that the courts should not forget that judicial controls are temporary measures: “It is not possible for any measure to be imposed eternally or in a continuous manner without any criteria. The temporariness of the measures means that they will come to an end after the fulfillment of the purpose expected of them.”

 

The Constitutional Court stressed that the prolongation of judicial control measures would cause increasing pressure on constitutional rights. The top court considered the rejection of Akyüz's applications for the removal of the judicial control decision on the grounds that "there was no procedural or illegal aspect in the decision" as "repeating abstract grounds that do not contain any evaluation."

 

The Constitutional Court also recommended examining all the evidence that is in favor and against the applicant and stated that the continuation of the judicial control measure for approximately 3 years and 8 months with insufficient and contradictory justifications had increased Akyüz’s victimization.

 

Will lower courts comply with the top court’s judgment?

 

Following the amendment introduced with the Fourth Judicial Package as well as the Constitutional Court’s judgment mentioned above, it is a matter of curiosity how the lower courts will proceed with requests for the lifting of international travel bans.

 

Although the international travel ban is defined as a temporary measure on paper, it has turned into a punishment method in practice. There are many people who have been banned from traveling abroad since 2016, and many of them are journalists. One of these journalists is Hayri Demir. The international travel ban measures imposed on journalists İsminaz Temel and Tunca Öğreten, who have been on trial in separate cases for the past four years, have been ongoing since 2017.

 

İsminaz Temel: Four separate travel bans in four investigations

 

Etkin News Agency (ETHA) editor and reporter İsminaz Temel was taken into custody three times after the 15 July 2016 coup attempt and four separate investigations were launched against her. While three of these investigations turned into prosecutions, one investigation still continues.

 

The first international travel ban decision for Temel was issued in 2017. In 2018, Temel was detained as part of another investigation and released under another travel ban. Temel was taken into custody one more time in 2020. After a four-day custody period, Temel was released under yet another travel ban. Finally, in an investigation initiated against her in February 2020, a new travel ban was imposed on Temel.

 

Temel submitted a petition for the lifting of the ban on traveling abroad, but her request was rejected by the court. Although she has been stating that she needs to go abroad due to the illness of her mother, who lives in Germany, and although she has submitted documents proving her mother’s health condition to the court, Temel's request was rejected every time.

 

Temel says that as a journalist, she received invitations from many journalism events organized abroad, but could not attend any of them due to her travel ban: “I was invited to events held in two different countries regarding the rights violations suffered by journalists, but I could not attend. Since the international travel ban decision was not lifted, I could not even apply.”

 

Temel stresses that the negative impact of the ban is not only on her profession: “It also has a huge impact on my personal life. My freedom of movement and freedom of expression are being restricted.”

 

Temel says that the international travel ban, like other judicial control measures, is used as a tool to intimidate journalists: “Besides the ban, the trials themselves are unlawful. The journalism profession is independent and impartial. It is on the side of the just, the right, the truth. We are targeted only because we report the truth, fulfill the public's right to information, and of course, because we do this with our dissident identity. Journalists who are not on the side of the government and do not report in the way the government wants are made into targets. Journalists who follow the truth are intimidated by trials, investigations, detentions and other practices such as international travel ban. This lawlessness must end.”

 

Hayri Demir: Banned from traveling abroad for 6 years

 

The first international travel ban on journalist Hayri Demir, who is currently on trial in two different cases, was imposed in 2016. The second international travel ban decision was issued in 2018. Both trials against Demir are overseen by the same court.

 

Stating that he has objected to the decisions in all hearings of his trials held to date, Demir says that the judicial control practice has turned from a “measure” to a punishment. Demir continues: “I have been facing an arbitrary sanction for years. Of course, I'm not someone who goes abroad all the time, but even a ban for this long is a violation of my rights. I have been a freelance journalist for a long time. During this time, I produced content for foreign media too. At times, I received job offers from abroad, but I could not go because of my travel ban. The latest one was in August. I had applied for the position of Turkey coordinator of a new television network. My job application was accepted and I passed the interview too. However, as my request for the removal of the ban was rejected, I could not start to work. Also, I could not attend some of the events I was invited to due to the arbitrary ban.”

 

Stressing that journalists have to travel constantly due to their profession, Demir reminds that other judicial control measures, such as regularly reporting to the police station, also have negative effects: “When I was taken into custody and released under a judicial control decision in March 2016, along with being subjected to the international travel ban, I was put under the obligation to report to the nearest police station two days a week. At that time, I could hardly do my journalism work. The dates set for reporting to the police station coincide with major news events. For example, it prevented me from covering the Justice March by Republican People’s Party (CHP) leader Kemal Kılıçdaroğlu. There are many such examples showing how judicial control decisions prevent journalists from doing their jobs. Even though the courts do not issue detention orders, judicial control decisions already restrict journalists.”

 

Öğreten: It prevents me from doing my job

 

Tunca Öğreten, who is one of six journalists on trial in the “RedHack case” that has been dragging on since 2017, has been banned from traveling abroad since the beginning of the case. So far, 12 hearings have been held in the trial, but Öğreten’s requests for the lifting of the international travel ban have been rejected by the court.

 

Öğreten explains: “Even though there is the added restriction caused by the Covid-19 pandemic for the past two years, not being able to travel abroad still poses a major problem. In professional and psychological terms, it creates a lot of difficulties for people, causes them to fall behind, cuts off their contact with the rest of the world.”

 

Stating that he has been working as a journalist for 18 years, and that he spent 6-7 years of this period in conflict areas, Öğreten reminds that he also works on immigrants and asylum seekers and underlines that his access to deportation news, which is a large part of his work, was prevented due to the judicial control decision.

 

Öğreten also states that he could not participate in many professional activities such as panels and seminars due to his ban on traveling abroad.

 

Lawyer Erselan Aktan: A regular practice in "certain case types"

 

Erselan Aktan, a lawyer who represents many journalists in courts, stresses that judicial control measures are even issued in simple criminal cases. “Even if it is clear from the beginning that an investigation will result in non-prosecution, the travel ban is imposed. Unfortunately, this has turned into a regular practice in certain charges,” Aktan says, adding: “This is done in two stages in cases against journalists: The first stage is the prosecution's referral of journalists with a request for detention after their interrogation; the second stage is the judge's decision to reject this request and to impose judicial control measures. In such cases, both the prosecuted and the defense counsel may be happy that they are at least freed from detention and may acquiesce to judicial control. However, in most cases the prosecution itself is even unlawful, let alone the judicial control measures imposed.”

 

Stressing that some journalists banned from traveling abroad do not even hold passports, Aktan says that for those people the travel ban is a meaningless sanction and yet it is still imposed by courts. “While the courts lift such measures as the signature obligation more easily, they tend to insist on the international travel ban. They probably think this measure is secondary to the charges people are facing. Perhaps that is why courts usually expect to be presented a truly vital reason to lift this measure.”

 

Aktan reminds that this judicial control measure also prolongs the proceedings: “Journalists currently living abroad avoid coming to the country, thinking that such a measure may be imposed on them, therefore they cannot attend their trials in person. And thus, their respective cases keep being adjourned by courts, and can drag on for years.”

 

Aktan adds: “Whether they are affected by the judicial control measure or not, journalists who are banned from traveling abroad are constantly reminded that they are subject to an investigation or prosecution. As a result, they do their job or express their opinions on social media through self-censorship.”