Committee of Ministers urged government to provide statistics on journalists and other free speech cases, reform anti-terror laws and Article 301
The Council of Europe’s Committee of Ministers has urged Turkey to reform its anti-terror and other legislation which have been used to restrict freedom of expression and provide statistical information on free speech cases, particularly information on the number of prosecuted journalists.
The decisions came at the end of meetings of ministers’ deputies in Strasbourg on 3-5 March 2020 to supervise Turkey’s implementation of the European Court of Human Rights (ECtHR) judgments in four separate groups of applications concerning the rights to freedom of speech and peaceful assembly. Those groups of applications are Işıkırık group, Öner and Türk group, Nedim Şener group and Altuğ Taner Akçam group v. Turkey.
The Committee of Ministers also decided to transfer another group of cases, the Artun and Güvener group, which concerns the offences of insulting the president and insulting public officials, to the enhanced supervision procedure and invited the authorities to provide information on the planned measures for the execution of this group of cases.
The first three groups reviewed at the meeting concern “unjustified and disproportionate interferences with the applicants’ freedom of expression on account of: criminal proceedings initiated under various articles of the Criminal Code and Anti-Terrorism Law for having expressed opinions although these did not incite hatred or violence, and the consequent chilling effect on society as a whole; the pre-trial detention of journalists, in the absence of relevant and sufficient reasons; and prosecutions under Article 301 of the Criminal Code.”
The Işıkırık v. Turkey group specifically concerns Article 220/6 and 7 of the Turkish Criminal Code (TCK), which state that anyone who commits a crime on behalf of an illegal organization or who knowingly and willingly aids and abets such an organization shall be sentenced as a member of that organization.
Amendments on TCK 220/6 and 7 not sufficient
Reviewing Turkey’s implementation of the ECtHR judgments in the Işıkırık v. Turkey group, the Committee of Ministers noted legal amendments carried out in 2013 but said they failed to remedy the “fundamental problem with Article 220/6 and 7 of the Criminal Code as identified by the Court” and therefore “invited the authorities to consider more extensive legislative solutions, and to inform the Committee of these before 31 December 2020.”
The Committee further called on the Turkish authorities “to provide statistical information on the number of persons charged and sentenced under Article 220/6 and 7 over the last five years and the types of conduct involved.”
The Işıkırık v. Turkey group brings together four different applications. The lead case in the group was brought by Murat Işıkırık, who was convicted of membership of a terrorist organization for participating in a peaceful funeral procession for members of the Kurdistan Workers’ Party (PKK) in July 2009.
In its judgment on the case, which became final in April 2018, ECtHR ruled that acts that potentially constitute a basis for punishment as a member of a terrorist organization under Article 220/6 and 7 “are so vast that the wording of the provision, including its extensive interpretation by the domestic courts, do not afford a sufficient measure of protection against arbitrary interferences by the public authorities.” The Court also holds that these provisions make no distinction between those who exercise their fundamental freedoms and those who commit crimes within the structure of a terrorist organization and that their implementation lacks foreseeability, creating a chilling effect on the exercise of the rights to freedom of expression and assembly.
Problems with provisions of TCK and TMK
In their decision on the implementation of ECtHR judgments on Öner and Türk group, Nedim Şener group and Altuğ Taner Akçam group v. Turkey, ministers’ deputies welcomed “the continuing good practice of the higher courts, in particular the Constitutional Court, in applying the criminal law in accordance with Convention principles” and the amendment of Article 7/2 of the Anti-Terrorism Law (TMK) in October 2019 as part of the government’s first judicial reform package to clarify that expressions of thought that do not exceed the boundaries of reporting and those made for the purpose of criticism shall not engage criminal liability.
The deputies concluded, however, that measures taken so far were not sufficient to remedy the problems highlighted in ECtHR judgments on these cases and therefore requested the Turkish authorities to provide “detailed statistical information showing the total number of prosecutions and convictions for the offences at issue in these groups of cases and also, given the particular importance accorded to freedom of the press by the Court in its case-law, information on the number of journalists prosecuted, convicted and held in pre-trial and post-conviction detention, with details of the allegations involved.”
The government dismisses criticism that it unjustly imprisons scores of journalists, and others, for exercising their freedom of speech and freedom of the media, claiming there is no journalist behind bars in Turkey and those who are prosecuted are jailed face punishment because they were involved in terrorist activities.
“Revise Article 301”
The ministers’ deputies said they “noted with interest” the Turkish authorities’ intention to take further measures within the scope of the Human Rights Action Plan. They called on the government to consider further legislative reforms and revise “without delay” Article 301 of the TCK, which penalizes “degrading Turkish nation, State of Turkish Republic, the organs and institutions of the State.”
The decision also called on the Turkish authorities to send a high-level political message underlining importance of freedom of expression and stating that criminal should not be used in such a way to restrict it.
The Committee of Ministers also agreed to instruct its Secretariat to prepare a draft interim resolution for consideration by the Committee at its next examination of these groups of cases, which is scheduled for June 2021, “in view of the quantity of judgments delivered by the European Court finding similar violations, the very long time that these issues have been pending before the Committee and the clear grounds for concern revealed by the available information concerning the present situation.”
The Öner and Türk v. Turkey group covers 32 cases, which concern violations of freedom of expression due to criminal proceedings against the applicants based on Article 7/2 and Article 6/2 and 4 of the TMK and Article 215 of the TCK. The applicants were all convicted on the basis of their expression which ECtHR found did not incite violence or hatred.
The Nedim Şener v. Turkey group covers four cases involving pre-trial detention of journalists on serious charges without relevant or sufficient evidence. The group includes cases of journalists Ahmet Şık, Mehmet Altan and Şahin Alpay.
Altuğ Taner Akçam v. Turkey group covers 15 cases which concern prosecutions under Article 301 of the TCK, which according to ECtHR, does not meet the “quality of law” requirement in view of its “unacceptably broad terms.”
In its Action Plans on the cases reviewed, which were submitted to the Committee of Ministers in January ahead of the meetings of 3-5 March, the Turkish government claimed that it has implemented the judgments and pointed to a series of legal amendments in 2013 to anti-terrorism legislation, its Judicial Reform Strategy released in 2019, and the training of judges to support it claim.
Turkey’s Action Plans on the Işıkırık group, Öner and Türk group, Nedim Şener group and Altuğ Taner Akçam group and Artuğ and Güvener group submitted to the Committee ahead of the meetings can be viewed here.
Rights groups: Freedom of speech continue to be at risk
ARTICLE 19 and the Turkey Human Rights Litigation Support Project (TLSP), however, maintained that freedom of expression continued to be at risk in Turkey despite several ECtHR judgments that specifically address the certain provisions of the TCK and TMK that are used to stifle free speech.
The two organizations, which submitted two communications to the Committee on Turkey’s lack of implementation of the Işıkırık group and the Öner and Türk group of cases, maintained that large numbers of prosecutions against those who used their freedom of expression or assembly show the widespread use of the anti-terror laws to harass those critical of the Government, including journalists, human rights defenders and others.