[OPINION] ECtHR, UN bodies debunk Turkey’s post-coup prosecutions one by one


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Ali Yıldız*

On the sixth anniversary of a controversial coup attempt in Turkey in July 2016, the Turkish government continues to use emergency powers as well as the country’s overly broad and vague anti-terror laws to maintain its repressive control of the people. According to a statement from Justice Minister Bekir Bozdağ, 559,332 people have been investigated or prosecuted in the last six years for terrorism over their links to the Gülen movement, which is accused by the Turkish government of masterminding the coup attempt, although the movement denies any involvement. While 116,702 people have so far been convicted of membership in a terrorist organization, 115,714 are still being investigated or standing trial. According to Interior Minister Süleyman Soylu, 332,884 people were arrested over their alleged links to the Gülen movement between July 16, 2016 and June 20, 2022, with more than 101,000 put in pretrial detention and 104,000 subjected to judicial supervision.

The government has deployed a set of variables to accuse and prosecute those people for membership in a terrorist organization under Article 314 of the Turkish Penal Code. These variables include (i) being a depositor at Bank Asya, a now-defunct Gülen-affiliated financial institution; (ii) being a shareholder in companies that have been dissolved/seized under a state of emergency declared after the failed coup for alleged Gülen links; (iii) using the ByLock messaging app, considered by Turkish authorities a secret tool of communication among members of the Gülen movement; (iv) police or intelligence agency reports; (v) analysis of social media activity and websites visited; (vi) donations made to relief organizations with alleged Gülen links; (vii) being a resident or student in dormitories or schools that were closed down under the state of emergency for alleged Gülen links; (viii) sending children to those schools that were subsequently shuttered; (ix) subscription to Gülen-linked publications; (x) information received from colleagues or neighbors; and (xi) being a manager, employee or member of a trade union, association, foundation or company closed/dissolved/seized under the state of emergency for alleged Gülen links.

Malicious prosecution is defined as the initiation of a criminal prosecution with malice and without probable cause. All those cases are literally malicious prosecutions since the set of variables used to prosecute hundreds of thousands of people are no more than details of everyday life and were absolutely lawful at the material time.

Indeed, the European Court of Human Rights (ECtHR) has so far found that pretrial detention based on those criteria is not sufficient to convince an objective observer of the existence of reasonable suspicion for being a member of a criminal organization.

In the case of Acar and Others v. Turkey where the applicants were judges and prosecutors detained after the coup attempt, the ECtHR noted that their detention was based solely on an administrative measure taken by the Council of Judges and Prosecutors for their suspension from office or the revocation of their authorities, and/or on information indicating their use of the ByLock messaging app. The court then concluded that neither an administrative measure about the applicants nor using the ByLock messaging app could justify their pretrial detention.

In the case of Nazli Ilicak, a journalist who used to work at Gülen-linked media outlets and was jailed after the coup attempt, the ECtHR first notes that the media outlets which were shut down and dissolved under the 2016-2018 state of emergency were completely legal at the material time and that working in those organizations and being paid by them thus cannot itself be a criminal offense. The court also found that wiretapped phone conversations which show that the applicant had spoken with persons who were subsequently the subject of criminal proceedings cannot, in the absence of any incriminating evidence as to their content, be regarded as plausible grounds for suspecting the applicant of having committed the criminal offenses of which she was accused.

In the case of lawyer Taner Kilic, who was the then-chairperson of Amnesty International’s Turkey branch, the ECtHR underlined that he was detained by a magistrate judge with reference to evidence, namely a report establishing that the encrypted messaging app ByLock had been downloaded onto the applicant’s phone and that this application had been used by him; his subscriptions to certain publications, such as the Zaman newspaper; the fact that the applicant’s sister was married to the newspaper’s editor; the attendance of his children at schools that were closed by decree-laws; and accounts opened at Bank Asya. The court then concludes his subscription to a legal publication at the material time; his sister’s marital relationship with the head of such a publication; and the fact that his children attended schools that were legally run at the material time but which were subsequently closed down by decree-laws; and being a customer of Bank Asya, which was also a legal bank at the material time, cannot reasonably be regarded as constituting a body of evidence showing that the applicant belonged to an illegal organization.

With regard to the allegation that he used ByLock, the court refers to its Akgün judgment, where it concluded that, in principle, the mere fact of downloading or using an encrypted means of communication or resorting to any other form of protection of the private nature of the messages exchanged cannot in itself constitute an element capable of convincing an objective observer that illegal or criminal activity was involved. The rights court, however, further undermines the Turkish judiciary’s posture on ByLock by concluding that the police report that was used to justify the allegation that the applicant had used the ByLock app cannot be accepted as capable of proving such an allegation as it did not include the underlying data or any information on how those data were established.

In the case Yasin Ozdemir v. Turkey, the ECtHR found that the applicant’s social media posts in favor of the Gülen movement and its leader Fethullah Gülen dated 2015 cannot constitute the offense of praising crime and criminals as at the material time no members of the Gülen movement had been convicted with the final effect of being leaders or members of an illegal or terrorist organization. By reaching this conclusion, the court states that conduct prior to the Court of Cassation’s judgment dated 26/09/2017 that designated the Gülen movement a terrorist organization cannot be retrospectively criminalized.

In the cases of Alparslan Altan, Hakan Bas, Turan and Others and Acar and Others, which concerned the pretrial detention of over 500 judges and prosecutors including those from the Constitutional Court and the Supreme Court of Appeals, the ECtHR found that the pretrial detention of the applicants was unlawful and also violated the judicial protection provided to judges and prosecutors necessary to safeguard the independent exercise of their functions.

The United Nations human rights bodies’ opinions were no different. The UN Human Rights Committee and the Working Group on Arbitrary Detention have so far considered some 20 cases filed by people detained as a result of their alleged links to the Gülen movement. The committee and the working group found that use of the ByLock app, having an account at Bank Asya, membership in certain associations that were closed down by state of emergency decrees or attendance at religious talks called “sohbet” that were organized by members of the Gülen movement were the mere exercise of rights of freedoms under the protection of international human rights treaties and that detention based on this conduct was therefore arbitrary and unlawful. The Working Group on Arbitrary Detention has also consistently found that this systematic arbitrary detention practice constituted a Category V violation, which means that those applicants were deprived of liberty on the grounds of discrimination that is based on political or other opinions.

Although Turkish courts are acting as willing executioners of the executive branch and no longer care or give credence to human rights conventions, constitutional principles or the law, when the victims are heard by the ECtHR and UN rights bodies, they are constantly being vindicated. It, therefore, proves the need for maintaining hope and continuing the fight for justice.

* Ali Yıldız is a Brussels-based lawyer and founder of The Arrested Lawyers Initiative.

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