Index calls the re-arrest of novelist Ahmet Altan “arbitrary and cruel”

Turkish authorities re-arrested the internationally known Turkish novelist Ahmet Altan just one week after his release from more than three years in detention. Index on Censorship and 24 other NGOs say that his re-arrest, on 12 November, was an extraordinarily low blow in a case that has been marked by political interference and arbitrariness from start to finish.

In addition to ongoing violations of his right to freedom of expression, stemming from a prosecution that should never have been brought in the first place, his re-arrest is a form of judicial harassment. Altan should be immediately released and his conviction vacated, the organisations say.

On 4 November this year, Altan was convicted of “aiding a terrorist organisation without being its member” and sentenced to 10 years and six months in jail. He was released on bail pending appeal against conviction by the defence. Altan had originally been convicted of “attempting to overthrow the constitutional order” and sentenced to life imprisonment without the possibility of parole. However, that conviction was overturned by the Supreme Court of Appeals who ordered a retrial on the lesser charge.

After the verdict in his retrial was handed down, the prosecutor appealed the decision to release him and on 12 November another panel of judges accepted this appeal and ruled that he should be re-arrested. Altan’s defence lawyers were not formally told of the court’s decision, but instead they learned about it through the pro-government media. Altan was detained later that evening and sent to Silivri Prison the following day.

Article 5 of the European Convention on Human Rights prohibits all arbitrary deprivation of liberty and the European Court of Human Rights has held that arbitrariness can arise where there has been an element of bad faith on the part of the authorities. Altan’s re-arrest and detention gives every appearance of being politically motivated, arbitrary, and incompatible with the right to liberty under Article 5. The organisations pointed to the following aspects of his re-arrest:

  • Despite having no right to do so, both the Turkish Presidency and Parliament sought to make representations arguing against the decision to release Altan – a move designed to put political pressure on the court.
  • The reasons the judge gave to cancel Altan’s release included that his activities “influenced many sympathisers through the news” and that “those who were interrogated for the same crime but fled the country have engaged in discourse and lobbying against our country’’ – grounds that are both unfounded and lack legitimacy as reasons to deprive someone of liberty. The judge further castigated Altan for refusing to show remorse for a crime he did not commit.
  • The judge also considered that Altan was a flight risk and issued a warrant for him to be re-arrested. However, the fact that the decision was almost immediately leaked to the media suggests that the authorities did not genuinely consider him to be a flight risk: Altan could have fled immediately upon hearing the news in the media. Instead, Altan was arrested at his home as he waited for the police. The next day, the court still sent him to prison custody insisting that he was a flight risk.

Thomas Hughes, executive director of ARTICLE 19 said: “The entire process of Ahmet Altan’s trial and retrial, including his prolonged detention, his release and then re-arrest on spurious grounds, has been completely arbitrary.

“The same court that convicted Altan of ‘attempting to overthrow the constitutional order’ then oversaw a retrial and convicted him of ‘aiding a terrorist organisation’, on the same evidence, which primarily consisted of Altan’s writings. That court then released him on bail and another court with no experience of the case ruled for his re-arrest.

“The case of Ahmet Altan is emblematic of the crackdown against writers and journalists in Turkey. Political revenge rather than justice has dominated the proceedings.”

Ahmet Altan’s case challenging his detention is still pending at the European Court of Human Rights. Other decisions by the ECtHR which are binding on Turkey and relate to prosecutions for free speech have had a significant impact on the outcome of the respective trials, including in the case of Ahmet’s brother, Mehmet Altan.

A ruling from the European Court setting out the scope and nature of the violations in Ahmet Altan’s case would likely have a decisive impact on his detention and the appeals process in his case.

We repeat our call for the Turkish authorities to release Ahmet Altan and vacate the conviction against him. The Turkish authorities should cease all judicial harassment of individuals on the basis of their political opinions and for exercising their fundamental right to freedom of expression.

Signatories:

ARTICLE 19

Association of European Journalists (AEJ)

Amnesty International

Articolo 21

Cartoonist’s Rights Network International (CRNI)

Danish PEN

English PEN

European Centre for Press and Media Freedom (ECPMF)

European Federation of Journalists (EFJ)

German PEN

Human Rights Watch

IFEX

Index on Censorship

International Federation of Journalists (IFJ)

International Press Institute (IPI)

Norwegian PEN

Osservatorio Balcani e Caucaso Transeuropa

PEN America

PEN Canada

PEN International

P24, Platform for Independent Journalism

Reporters Without Borders (RSF)

South East Europe Media Organisation (SEEMO)

Swedish PEN

World Association of News Publishers (WAN-IFRA)

 

Background

Ahmet Altan is an internationally known Turkish novelist who was convicted to life imprisonment without parole in February 2018 for “attempting to overthrow the constitutional order” in an unfair trial that primarily relied on his writings and comments in the media. His case was overturned by the Supreme Court of Appeals in July, who recommended a retrial on equally bogus charges of “aiding a terrorist organisation without being its member”. On 4 November this year, Altan was convicted on the new charges and sentenced to 10 years and six months in prison. He was released on bail pending appeal, after having served more than three years in detention, awaiting trial or appeal. On 12 November he was returned to prison, just one week after his release.

In its verdict on 4 November, the judge ruled that the parliament and the presidency could not intervene in the case as victims. Despite this, on 5 November parliament made an application challenging, inter alia, Altan’s release. It also made a separate application challenging the verdict.

On 6 November, the prosecutor also challenged the decision to release Altan on the grounds that there was a flight risk, despite the fact that a foreign travel ban had been put in place.

On 7 November, Istanbul Heavy Penal Court No 26 reviewed the legal challenges and confirmed its previous decision to release him and the case file was referred to the Heavy Penal Court No 27 for review.

On 8 November, the presidency challenged the verdict, including the release of Altan, stating that all defendants should be charged on the basis of the initial indictment.

On 11 November, the presiding judge and prosecutor of Heavy Penal Court No 27 were changed.

On 12 November, the court, with a new judge and prosecutor, reviewed the legal decision of Court No 26 and issued a ruling. The ruling was not provided to the defence lawyers, but was leaked to the pro-government press which immediately reported that an arrest warrant had been issued. Ahmet Altan was re-arrested that evening, before the decision was communicated to him, or his lawyers, officially.

On 13 November, Altan was taken before the presiding judge at Heavy Penal Court No 27 to review his arrest and decide on his transfer to prison. The judge ruled that he should be returned to prison.

Note: ARTICLE 19 submitted an expert opinion to the court during the first trial, which examined the coup-related charges and evidence against international standards on the right to freedom of expression. Human Rights Watch also assessed the indictment and, like ARTICLE 19, found that the journalistic works cited expressed political opinions and did not incite or advocate violence. No new evidence was presented at the retrial on terrorism charges.

Index calls on European Court of Human Rights to support Kurdish journalist 

İdris Sayılgan’s father Ramazan, mother Sebiha and sisters Tuğba and İrem are waiting for İdris (Credit: Özgün Özçer)

 

Global press freedom groups, including Index on Censorship, argue Turkey no longer offers domestic remedy

A coalition of 10 international press freedom and journalism organisations has intervened at the European Court of Human Rights (ECtHR) in support of a case brought by İdris Sayılğan, a Turkish-Kurdish journalist jailed since 2016 on baseless anti-terror charges. The intervention focuses on the crucial question of domestic remedy, which has significant implications for the ECtHR’s handling of cases from Turkey.

Jessica Ní Mhainín, policy research and advocacy officer at Index on Censorship said: “Journalists and others in Turkey who have been criminalised and imprisoned for exercising their right to freedom of expression continue to be denied meaningful redress. We are hopeful that the ECtHR will recognise this lack of access to justice by accepting to take up İdris Sayılğan’s case. The situation in Turkey remains deeply concerning and journalists, such as Sayılğan, who speak out on issues relating to Turkey’s Kurdish minority remain particularly at risk.”

Sayılğan worked for the now-shuttered pro-Kurdish Dicle news agency (DİHA) before his arrest on October 7, 2016. Authorities did not inform him of the charge – membership of an armed terrorist organisation – until an indictment was produced nine months later. Typical of Turkey’s ongoing crackdown on the media, prosecutors’ evidence consists solely of Sayılğan’s journalistic work, indicating a politically driven effort to silence criticism.

His detention and trial have been marked by major violations of the right to a fair trial, described in documents filed by Sayılğan’s lawyers before the court. These violations include interference with Sayılğan’s right to legal counsel, denying him the right to appear personally in court, and preventing defence lawyers from calling witnesses. Sayılğan’s appeal to Turkey’s Constitutional Court, filed in July 2018, has gone unanswered. In January 2019, Sayılğan was sentenced to eight years and three months in prison.

The coalition’s intervention argues that the ECtHR should not require applicants from Turkey, such as Sayılğan, to first exhaust all “domestic remedies” – proceeding through all stages of the national-level appeals process – before applying to the Court. This argument is based on evidence that Turkey’s justice system, including the Constitutional Court, no longer offers an effective remedy. Judicial independence has been compromised and courts are unable to address cases in a fair, timely and consistent manner. The ECtHR’s current insistence on domestic remedy in Turkey largely prevents journalists and others from obtaining any meaningful redress to fundamental rights violations suffered.

“Idris Sayılğan’s case is but one of hundreds of examples of arbitrary detention and prosecution of Turkey’s journalists and the abject failure of a judicial system cowed by the political forces unleashed in 2016 to silence criticism,” said IPI Turkey Programmes Manager Oliver Money-Kyrle. “The European Court of Human Rights can offer a first step towards justice by recognising the absence of domestic remedy and accepting to take up Sayılğan’s case.”

A total of 130 journalists are behind bars in Turkey, and most are the victims of a wide-ranging crackdown on critics of the government of President Recep Tayyip Erdogan, which was set in motion following the July 2016 coup attempt and the subsequent enaction of a State of Emergency. Anti-terror laws have been Turkey’s main tool of choice to prosecute the press, though journalists have been frequently held for extended periods without official charges. Indictments invariably rely on journalists’ professional work, including articles, social media posts and conversations with sources. Trials are marked by violations of basic rights of defence.

Sayılğan is represented before the ECtHR by the Media Legal Defence Initiative (MLDI) and the Turkey-based Media and Law Studies Association (MLSA). The application argues violations of Article 5 (liberty and security), 6 (fair trial), 10 (freedom of expression), 13 (effective remedy) and 18 (limitation on rights).

The Intervention was submitted by the International Press Institute (IPI) on Friday, October 18, on behalf of a coalition of leading press and freedom of expression organisations including Article 19, the Association of European Journalists (AEJ),  the Committee to Protect Journalists (CPJ), the European Centre for Press and Media Freedom (ECPMF), English PEN, the European Federation of Journalists (EFJ), Index on Censorship, the International Federation of Journalists (IFJ) and PEN International. The intervention was drafted with the help of international law firm Freshfields Bruckhaus Deringer.

 

Ebtisam Al-Saegh: “I think about justice and justice for the rest of the victims”

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Ebtisam Al-Saegh

“My main objective is to tell about the truth and whatever is going on on the ground,” said Ebtisam Al-Saegh, a Bahraini human rights activist, through Jawad Fairooz, a former Bahraini MP and the executive director of the organization SALAM for Democracy and Human Rights, who served as her translator. “This objective is what made me targeted.” 

Al-Saegh’s story unfolds like a cautionary tale. A networking officer for SALAM and a member of the Bahrain Human Rights Observatory, Al Saegh first came under suspicion in November 2016, for a series of posts she made on Twitter. This was nothing out of the ordinary: Al Saegh said she could “give many examples of activists who use Twitter to express their views and opinions and have been targeted, some of them have been sentenced 1-3 years.” She was questioned by Bahrain’s Public Prosecution Office, accused of inciting hatred against the Bahraini regime and threatening public safety and security. She was questioned again before leaving the country in January 2017, and detained for seven hours at an airport in March 2017.

In May 2017, Al-Saegh was detained by Bahrain’s National Security Agency. While being interrogated, Al-Saegh was beaten, sexually assaulted, and physically and psychologically tortured. She bravely described humiliating and inhumane treatment at the hands of the Bahraini police, who even prevented her husband from bringing her personal clothing and food at night during the fast month of Ramadan, during which she was detained. 

In July 2017, Al-Saegh’s family home was ransacked and she was detained yet again. Without a warrant, police confiscated every mobile phone in her home and took valuable items like cash and personal jewelry. She was again interrogated, tortured and sexualy assaulted. She recalls her abusers telling her, “We have enough reasons to keep you under custody, and you will be sentenced with between 10 to 15 years, and no one will defend you. No human rights groups, even the human rights council cannot defend you or you will never be released and there will never be any mercy for you.”

She was brought to Isa Town Women’s Prison, where fellow inmates reported that she looked visibly injured. For two months, she recalls being placed in solitary confinement and forbidden from interacting with fellow inmates. After a month-long hunger strike, she was finally permitted to interact with other inmates — at first, only non-Bahrainis, but she was eventually fully reintegrated into the prison. 

She was also allowed to see her family, and document some of the conditions of her imprisonment. She remembers that as a result of horrifying treatment at the hands of the Bahraini authorities, her son had developed psychological problems. She was released pending trial for terrorism-related offenses. She was imprisoned for a total of four months, and suspects that media coverage and advocacy by international human rights organizations sped up her release, which was far sooner than the release of many of her friends and colleagues who remain incarcerated for similar reasons. Upon her release, she attempted to reclaim the property that had been stolen by Bahraini authorities. The authorities denied ever taking certain valuables, including jewelry, but forced her to sign a form declaring that all confiscated property had been returned. 

The detained and interrogated me so many times, and the accusation they’ve given is that I am fabricating stories or that I am threatening the civil peace within society,” Al Saegh said. “My crime was that I wanted to implement the mechanism of international human rights… and the principles of human rights within society.”

Bahrain was once the gold standard for media freedom among Gulf countries, permitting a relatively free press and government criticism from independent media. Yet following Arab Spring-inspired protests in 2011, King Haman bin Isa Al Khalifa began cracking down on dissidents, specifically targeting those who spoke out against Islam or the current regime. The conditions for media freedom worsened in July 2016 when, according to Freedom House, “[Bahrain’s] information minister issued new regulations requiring newspapers to obtain annual, renewable licenses to publish online. It also prohibited live streaming video, as well as video clips longer than 120 seconds in length.”

Ever since a series of protests for Shi’a Muslim equality in 2007 became violent — Bahrain’s ruling family is Sunni though the country’s religious majority is Shi’a — police violence, poor prison conditions and the torture of detainees have escalated. A report by the Bahrain Independent Commission of Inquiry in 2011 recorded several individuals killed under torture after abuse during detention. According to Al-Saegh, “The king issued a royal decree sentencing any activist that is retweeting or trying to follow any of the bloggers or Twitter activists who are writing anything against the policy of the government. The punishment for such actions can be up to five years.”  

Al-Saegh’s experience is devastatingly common. Fairooz also mentioned torture and sexual abuse during his own imprisonment, and both he and Al-Saegh mentioned the case of Nabeel Rajab, another prominent Bahraini human rights activist who was sentenced to five years in prison in February 2018. 

Even speaking out about experiences being tortured by Bahraini authorities can make activists like Al-Saegh and Fairooz vulnerable to more abuse. “Part of the reason for recording this story… is to encourage the rest to talk about it,” said Fairooz. “We want the act to be shameful not for the victims, but to be shameful for the torturers. By bringing up these stories, we encourage the victims to be healed.”

Al-Saegh believes that speaking out is worth the risk of losing even more than she already has. “I don’t think about any material things that have been taken away from me, no jewelry, no other items,” she said. “I think about justice and justice for the rest of the victims. Without that, I will not be ready to compromise at all.” [/vc_column_text][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1562944045425-143d4185-08a4-1″ taxonomies=”716″][/vc_column][/vc_row]

Law and the new world order

[vc_row][vc_column][vc_custom_heading text=”Index editor Rachael Jolley argues in the summer 2019 issue of Index on Censorship magazine that it is vital to defend the distance between a nation’s leaders and its judges and lawyers, but this gap being narrowed around the world” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][vc_column_text]

It all started with a conversation I had with a couple of journalists working in tough countries. We were talking about what kind of protection they still had, despite laws that could be used to crack down on their kind of journalism journalism that is critical of governments. 

They said: When the independence of the justice system is gone then that is it. Its all over.

And they felt that while there were still lawyers prepared to stand with them to defend cases, and judges who were not in the pay of or bowed by government pressure, there was still hope. Belief in the rule of law, and its wire-like strength, really mattered.

These are people who keep on writing tough stories that could get them in trouble with the people in power when all around them are telling them it might be safer if they were to shut up.

This sliver of optimism means a great deal to journalists, activists, opposition politicians and artists who work in countries where the climate is very strongly in favour of silence. It means they feel like someone else is still there for them.

I started talking to journalists, writers and activists in other places around the world, and I realised that although many of them hadnt articulated this thought, when I mentioned it they said: Yes, yes, thats right. That makes a real difference to us.

So why and how do we defend the system of legal independence and make more people aware of its value? Its not something you hear being discussed in the local bar or café, after all. 

Right now, we need to make a wider public argument about why we all need to stand up for the right to an independent justice system. 

[/vc_column_text][vc_row_inner][vc_column_inner width=”1/4″][vc_icon icon_fontawesome=”fa fa-quote-left” color=”custom” size=”xl” align=”right” custom_color=”#dd3333″][/vc_column_inner][vc_column_inner width=”3/4″][vc_custom_heading text=”On an ordinary day, most of us are not in court or fighting a legal action, so it is only when we do, or we know someone who is, that we might realise that something important has been eroded” font_container=”tag:h3|text_align:left” google_fonts=”font_family:Libre%20Baskerville%3Aregular%2Citalic%2C700|font_style:400%20italic%3A400%3Aitalic”][/vc_column_inner][/vc_row_inner][vc_column_text]

We need to do it because it is at the heart of any free country, protecting our freedom to speak, think, debate, paint, draw and put on plays that produce unexpected and challenging thoughts. The wider public is not thinking hey, yes, I worry that the courts are run down, and that criminal lawyers are in short supply, or If I took a case to trial and won my case I can no longer claim my lawyers fees back from the court. On an ordinary day, most of us are not in court or fighting a legal action, so it is only when we are, or when we know someone who is, that we might realise that something important has been eroded. 

Our rights are slowly, piece by piece, being undermined when our ability to access courts is severely limited, when judges feel too close to presidents or prime ministers, and when lawyers get locked up for taking a case that a national government would rather was not heard.

All those things are happening in parts of the world right now. 

In China, hundreds of lawyers are in prison; in England and Wales since 2014 it has become more risky financially for most ordinary people to take a case to court as those who win a case no longer have their court fees paid automatically; and in Brazil the new president, Jair Bolsonaro, has just appointed a judge who was very much part of his election campaign to a newly invented super-ministerial role. 

Helpfully, there are some factors that are deeply embedded in many countrieslegal histories and cultures that make it more difficult for authoritarian leaders to close the necessary space between the government and the justice system.

Many people who go into law, particularly human-rights law, do so with a vision of helping those who are fighting the system and have few powerful friends. Others hate being pressurised. And in many countries there are elements of the legal system that give sustenance to those who defend the independence of the judiciary as a vital principle.

Nelson Mandelas lawyer, Sir Sydney Kentridge QC, has made the point that judges recruited from an independent bar would never entirely lose their independence, even when the system pressurised them to do so.

He pointed out that South African lawyers who had defended black men accused of murder in front of all-white juries during the apartheid period were not easily going to lose their commitment to stand up against the powerful.

Sir Sydney did, however, also argue that in the absence of an entrenched bill of rights, the judiciary is a poor bulwark against a determined and immoderate governmentin a lecture printed in Free Country, a book of his speeches.

So it turned out that this was the right time to think about a special report on this theme of the value of independent justice, because in lots of countries this independence is under bombardment. 

Its not that judges and lawyers havent always come under pressure. In his book The Rule of Law, Lord Bingham, a former lord chief justice of England and Wales, mentions a relevant historical example. When Earl Warren, the US chief justice, was sitting on the now famous Brown v Board of Education case in 1954, he was invited to dinner with President Dwight Eisenhower. Eisenhower sat next to him at dinner and the lawyer for the segregationists sat on his other side. According to Warren, the president went to great lengths to promote the case for the segregationists, and to say what a great man their lawyer was. Despite this, Warren went on to give the important judgement in favour of Brown that meant that racial segregation in public schools became illegal.

Those in power have always tried to influence judges to lean the way they would prefer, but they should not have weapons to punish those who dont do so. 

In China, hundreds of lawyers who stood up to defend human-rights cases have been charged with the crime of subverting state powerand imprisoned. When the wife of one of the lawyers calls on others to support her husband, her cries go largely unheard because people are worried about the consequences.

This, as Karoline Kan writes on p23, is a country where the Chinese Communist Party has control of the executive, judicial and legislative branches of government, and where calls for political reform, or separation of powers, can be seen as threats to stability. 

As we go to press we are close to the 30th anniversary of the Tiananmen Square killings, when thousands of protesters all over China, from all kinds of backgrounds, had felt passionately that their country was ready for change for democracy, transparency and separation of powers.

Unfortunately, that tide was turned back by Chinas government in 1989, and today we are, once more, seeing Chinas government tightening restrictions even further against those who dare to criticise them.

Last year, the Hungarian parliament passed a law allowing the creation of administrative courts to take cases involving taxation and election out of the main legal system (see p34). Critics saw this as eroding the gap between the executive and the justice system. But then, at the end of May 2019, there was a U-turn, and it was announced that the courts were no longer going ahead. It is believed that Fidesz, the governing party in Hungary, was under pressure from its grouping in the European Parliament, the European Peoples Party. 

If it were kicked out of the EPP, Hungary would have in all likelihood lost significant funding, and it is believed there was also pressure from the European Parliament to protect the rule of law in its member states. 

But while this was seen as a victory by some, others warned things could always reverse quickly.

Overall the world is fortunate to have many lawyers who feel strongly about freedom of expression, and the independence of any justice system.

Barrister Jonathan Price, of Doughty Street Chambers, in London, is part of the team advising the family of murdered journalist Daphne Caruana Galizia over a case against the Maltese government for its failure to hold an independent inquiry into her death. 

He explained why the work of his colleagues was particularly important, saying: The law can be complex and expensive, and unfortunately the laws of defamation, privacy and data protection have become so complex that they are more or less inoperable in the hands of the untrained.

Specialist lawyers who were willing to take on cases had become a necessary part of the rule of law, he said a view shared by human-rights barrister David Mitchell, of Ely Place Chambers, in London.

The rule of law levels the playing field between the powerful and [the] powerless,he said. Its important that lawyers work to preserve this level.” 

Finally, another thought from Sir Sydney that is pertinent to how the journalists I mentioned at the beginning of this article keep going against the odds: It is not necessary to hope in order to work, and it is not necessary to succeed in order to hope in order to work, and it is not necessary to succeed in order to persevere.” 

But, of course, it helps if you can do all three.

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Rachael Jolley is editor of Index on Censorship. She tweets @londoninsider. This article is part of the latest edition of Index on Censorship magazine, with its special report on local news

Index on Censorship’s spring 2019 issue is entitled Is this all the local news? What happens if local journalism no longer holds power to account?

Look out for the new edition in bookshops, and don’t miss our Index on Censorship podcast, with special guests, on Soundcloud.

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