In the wake of the 15 July 2016 coup attempt, Turkey has become a “de facto permanent” emergency regime. The state of emergency, which has been extended six times, has become a convenient pretext for the government to crack down on freedom of expression.
The resultant purge has had draconian impacts: 5,822 academics sacked, 189 media outlets shuttered and 319 journalists arrested or prosecuted. The country’s judicial system has been decimated, with 4,560 judges and prosecutors dismissed. The government’s near-complete takeover of the judiciary and its direct defiance of the rule of law has debased freedom of expression in the country.
Examples of how the executive arm of the Turkish government is pulling the strings of the judiciary are not hard to find.
On 31 March 2017, the chief judge and two members of the Istanbul 25th High Criminal Court, who ordered the release of 21 journalists, and the prosecutor, who requested the releases, were suspended and later faced a disciplinary hearing. The 21 journalists were kept waiting in a prison van until a new arrest and detention order was issued by another court, which was under an onslaught of attacks from pro-government social media accounts.
Judicial Council deputy president Mehmet Yilmaz explained the reasoning behind the suspension of the judges: “The evidence has not been collected…and the release decision issued…has caused public indignation and harmed public conscience.”
If members of the judiciary can be suspended because their decision has caused “public indignation and harmed public conscience”, this suggests that judges in Turkey are without any protection from external pressures.
In another case, on 31 January 2018, a court ordered the release of Amnesty International’s Turkey chair Taner Kilic, but just hours later another demanded his re-arrest. Amnesty’s secretary general Salil Shetty said: “Over the last 24 hours, we have borne witness to a travesty of justice of spectacular proportions. To have been granted release only to have the door to freedom so callously slammed in his face is devastating for Taner, his family and all who stand for justice in Turkey.”
Taner’s renewed detention came after a decision from the Istanbul trial court to conditionally release him before his trial. However, after the prosecutor appealed, a second court in Istanbul accepted this appeal and quashed Taner’s release.
“I do not know why I was imprisoned a year ago and why I was released”
In another example of government interference, Turkish-German journalist Deniz Yücel, who reported for Die Welt newspaper, was arrested on 27 February 2017 in Istanbul. At the time, Turkey’s president, Recep Tayyip Erdogan, summarised the accusations against Yücel saying: “He is not a correspondent; he is a terrorist. … This person hid in German consulate for a month as a representative of PKK, as a German spy. We have recordings, everything. This is the very spy terrorist.”
Erdogan also reportedly said that Yücel would not be released so long as he was the president. Yücel’s detention continued for almost a year without charge.
On the eve of his official trip to Germany on 15 February 2018, prime minister Binali Yildirim responded to protests and open requests from the German government for Yucel’s release. He said: “I think that a development will take place soon.” In a joint press conference with German chancellor Angela Merkel on 15 February 2018, he said: “What is necessary shall be done within the scope of the rule of law; what is required of us is to clear the way for the courts. … I hope that the trial will take place within a short time and a result will be achieved.”
On 16 February 2018 the Istanbul High Criminal Court accepted an indictment against Yücel that sought an 18-year sentence, yet the court also simultaneously ordered his release. Yücel flew to Germany on the same day. No international travel ban was imposed, despite the high sentence the prosecutor was demanding, which is the regular practice in “terror” related cases.
After his release, Yücel reported that he was given a 13 February 2018 ruling by the Third Criminal Peace Judgeship which detailed an order for his continued detention. “I am free despite this. I do not know why I was imprisoned a year ago and why I was released today. Is it not strange? Anyway, it does not matter. After all, I know that neither my jailing — more precisely my being taken as a hostage a year ago — nor my release today is in accordance with the rule of law at all. I know this very well.”
It’s clear that Yücel’s release and ability to leave the country were the result of political deals and the high criminal court was taking orders from the executive branch of government.
“Attempting to overthrow the constitutional order”
Within hours after Yücel’s release, six other individuals, including five journalists, were issued life sentences for “attempting to overthrow the constitutional order”. Ahmet Altan, Mehmet Altan, Nazli Ilicak, Yakup Şimşek, Fevzi Yazıcı and Şükrü Tuğrul Özsengül were all handed sentences after being convicted of involvement with the attempted coup, despite a clear lack of direct evidence.
“The court decision condemning journalists to aggravated life in prison for their work, without presenting substantial proof of their involvement in the coup attempt or ensuring a fair trial, critically threatens journalism and with it the remnants of freedom of expression and media freedom in Turkey,” said David Kaye, the United Nations special rapporteur on freedom of opinion and expression.
The constitutional court decided on 11 January 2018 that the freedom of expression and liberty of the two journalists Mehmet Altan and Şahin Alpay had been violated. Following the decision, deputy prime minister and government spokesperson Bekir Bozdağ stated on his Twitter account that the constitutional court had overstepped its boundary drawn up by the constitution and legislation. Under pressure from the government, the decisions made in the cases of Alpay and Altan were not implemented by Istanbul courts. This was due to almost the same reasoning as used by the government spokesperson.
Despite the dictum that the court’s decisions are final and binding on the legislative, executive and judicial matters, the courts of the first instance have not implemented the decision.
Another disappointment for the freedom of all arrested journalists
In another case, after an application by journalist Sahin Alpay, the constitutional court delivered the decision on 19 March 2018 that found Alpay’s rights were violated under the European Convention on Human Rights. By contrast, the Istanbul court followed the ruling this time and issued Alpay’s conditional release. Surprisingly, nothing was heard from the executive on this occasion. This development has been regarded by some as the government’s tactical move to avoid a possible European Court of Human Rights ruling on related pending cases to the effect that the constitutional court is not an effective remedy.
Turkish human rights lawyer Kerem Altıparmak tweeted that the Turkish government’s move was intended to send a message to the ECtHR that the constitutional court is a viable domestic remedy. Yaman Akdeniz, another prominent law professor and rights defender, said that ECtHR’s rejection of examination of the cases of journalists relying on the Article 18 of the European Convention on Human Rights is another disappointment for the freedom of all arrested journalists.
“A disgrace to Turkey’s justice system”
On 9 March 2018 a Turkish court sentenced 25 journalists to imprisonment on the grounds of allegedly being members of a terrorist organisation. The prosecutor’s primary evidence was that the journalists had criticised the Turkish government and Erdogan on social media. On these charges, 23 of the accused journalists were given between two and seven years in prison. Nina Ognianova, the Committee to Protect Journalists Europe and Central Asia programme co-ordinator, described the decision as “a disgrace to Turkey’s justice system”. She called on authorities to drop the charges on appeal.
The judiciary’s exposure to outside influences and pressures have turned the Turkish judicial system into a nightmare for journalists, academics, rights defenders, philanthropists and even judges themselves.