The judicial authorities extensively interpret and misuse the anti-terror law to arrest, detain and convict the dissidents in Türkiye. Thus, tens of thousands of innocent people have been persecuted simply for exercising their fundamental rights and freedoms. These severe human rights violations may constitute crimes against humanity as defined under Article 7 of the Rome Statute of the International Criminal Court (RSICC). The unprecedented scale and gravity of the ongoing systematic and widespread human rights violations perpetrated by the Turkish Government needs close scrutiny and investigation by the international community.
Broad and uncertain practice of anti-terror legislation
UN Special rapporteurs and the Working Group on Arbitrary Detention recently concluded that “the [Turkish] Anti-Terror Law adopts an overly-broad definition of terrorist acts and terrorist offenders that implicates a range of activities protected by the freedoms of opinion, expression, association, and political participation” (OL TUR 13/2020) and recommended the urgent review and revision of this legislation.
Same way the Venice Commission concludes that the Turkish Criminal Code (TCC) does not contain a definition of an armed organisation or an armed group and the interpretation of Article 314 of TCC that defines the crime of armed organization, is quite vague. The Grand Chamber of the European Court of Human Rights (ECtHR) has most recently, in the case of Selahattin Demirtas v. Turkey (2), endorsed the findings of the Venice Commission and established that Türkiye’s anti-terror provision was not foreseeable and coupled with its interpretation by the domestic courts, does not afford adequate protection against arbitrary interference by the national authorities with the fundamental rights of the persons. Within this context, terrorism charges in Türkiye are widely misused against dissidents to arbitrarily arrest and detain them.
The Turkish judiciary’s interpretation of anti-terror law is so vague and broad that no innocent act could escape from the scope of the Anti-Terrorism Act. In Atilla Taş (Affaire Atilla Taş c. Turquie (Requête No 72/17, 19 janvier 2021), the European Court of Human Rights (ECHR) ruled that the arbitrary interpretation of the criminal laws by the Turkish judiciary were so unreasonable that it rendered the deprivation of liberty suffered by the applicant unlawful and arbitrary (pr.139).
ECtHR in this decision also reiterated that the laws interpreted by the Turkish courts in such cases cannot be said to be precisely formulated so as to be qualified as foreseeable, thus are totally devoid of the standards required by the quality of law within the framework of the Convention. So, the Court drew attention to absolute arbitrariness in the interpretation and the practice of such laws by the Turkish judiciary.
ECtHR and UN bodies on every occasion stressed that the mere exercise of lawful activities shouldn’t be considered as evidence of any crime, let alone the crime of terrorism. In this context, the ECtHR concluded, for example, in Akgün case that it is only when the use of an encrypted means of communication is supported by other elements relating to its use, such as for example the content of the messages exchanged or the context in which these were exchanged, or by other types of elements relating thereto, that we can speak of evidence capable of convincing an objective observer of the existence of a plausible reason to suspect his user of being a member of a criminal organization.
In the former President of Amnesty International Türkiye Taner Kiliç’s case, ECtHR concluded that the subscription to a legal publication, the schooling of his children in legal institutions, or holding an account with a bank which was operating in accordance with law, cannot reasonably be considered to constitute a body of evidence showing that the applicant belonged to an illegal organization.
In a total of 19 opinions issued between June 2017 and March 2021 on allegations of arbitrary detentions in Türkiye, the UN Working Group on Arbitrary Detention (WGAD) consistently concluded that the detentions of the individuals in question had no legal basis whatsoever and deplored the widespread practice of ‘guilt-by-association’. In its last four Opinions, the Working Group on Arbitrary Detention (WGAD), noted the existence of a pattern of targeting those with alleged links to Gulenists on the discriminatory basis of their political or other opinion, based on the significant increase in the number of cases brought to it concerning arbitrary detention in Türkiye. The WGAD expressed concern over the pattern that all these cases follow and recalled “that under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of the rules of international law may constitute crimes against humanity.”
In a more recent decision, the WGAD concluded that the Government of Türkiye is responsible for the abduction and detention of members of the Movement from abroad, and for their forcible transfer to Türkiye in breach of freedom of expression, prohibition of discrimination and torture.
According to the Turkish Justice Ministry statistics, between 2016 and 2020, more than 265.000 individuals were sentenced with the accusation of membership to a terrorist organisation. As of June 2022, total number of judicial proceedings launched by Turkish judiciary against its citizens with the allegation of membership in a terrorist organisation exceeds 2 million. Considering the large number of people subjected to criminal prosecutions, it seems that more than 4 million people in Turkish society have been directly affected by these arbitrary procedures.
Based on the same allegation, around 152.000 public servants were dismissed from the profession by the decrees and administrative decisions issued in this period; hundreds of students’ studentship were ended; more than 1000 schools, universities, and 2,761 institutions and organizations were closed; the ranks of thousands of personnel were taken away; thousands of private businesses were seized; an injunction was placed on the property of thousands of people and their money in banks; and $ 32 billion worth of private property was seized. Likewise, the closure of 179 media institutions, including 53 newspapers, 37 radio stations, 34 televisions, 29 publishers, 20 magazines and 6 news agencies, shows the extent of the hit that the press received within three years under the pretext of a coup attempt. According to Türkiye Media Ownership Monitoring Report, 6081 academics, 1427 university administrative staff, more than 20 thousand military officers, 4,500 judges and prosecutors were dismissed in 2 years.
The unique argument of the Turkish government while naming the group as terrorist is the botched coup attempt of 15 July 2016. However, the crackdown had already been launched long before the coup, such as confiscating enterprises, schools and media outlets. On the other hand, what happened during the night of 15 July is still a secret and it is not possible either to learn the reality in these circumstances in Türkiye, especially with a justice lacking independence and impartiality under a one-man rule.
In September 2019, President Erdogan made the following statement on the case of Selahattin Demirtas, former Co-Chair of the pro-Kurdish Peoples’ Democratic Party (HDP),:
“This nation does not forget, and will not forget, those who invited people to the streets and then killed 53 of our children in Diyarbakır. We have been following, will follow, this issue, until the end. We cannot release those people. If we release them, our martyrs will hold us accountable”.
On the very same day this statement was made, Mr Demirtas’s release was prevented through a new detention based on a new investigation.
Following the botched coup attempt, the government’s relentless clamp down on the judiciary has created an unprecedent impact on the Turkish judiciary. With the instant imprisonment of thousands of judges and prosecutors, among them are two members of the Constitutional Court and many of Supreme Courts, on the very day of the botched coup attempt – even before the arrests of the military officers who were involved in the coup attempt, members of the judiciary were stripped totally off not only tenure security but also their personal security against arbitrary dismissal and prosecution. As can be seen in the recent judgments of the ECtHR relating to the dismissed and arrested members of the Turkish judiciary, detentions of these judges and prosecutors on a mass scale were not based on any evidence suggesting that the persons in question might have committed the crimes they were charged with.
Where the members of the supreme courts could be dismissed and imprisoned instantly on no evidence but on the Government’s arbitrary allegations, it is evident that no one expect their fundamental rights and freedoms to be secured against the arbitrary encroachment of the government.
Of course, this arbitrary practice had its reflections in the reports of international institutions and organizations like European Commission, Council of Europe’s Venice Commission and PACE, UNHCHR, etc. as well as the reports by international NGOs. Among them, the 2021 report on Council of Europe Annual Penal Statistics on Prison Populations reveals that Türkiye is by far the leader in the number of prisoners convicted of terrorism throughout Europe. According to the data in this report, 30,555 convicts in Turkish prisons constitute 95 percent of the total number of 32,006 inmates convicted of a terrorism-related crime in the Council of Europe member states as of 2021. Not surprisingly, Russian Federation -with 1,026 prisoners convicted with terrorism charges that correspond to 3.2 percent of the total number- had the second place. As of 2023, considering the fact that Russian Federation ceased to be party to the Council of Europe, Türkiye’s share in the total number is now above 98 percent in Europe.
Judiciary as the guarantor of arbitrariness in today’s Türkiye
Especially in the aftermath of the Gezi protests and the graft probes of 2013, those in power apparently reinvented the fact that an enslaved judiciary would help consolidate the autocracy. This was the only way to turn the courtrooms into accreditation offices for their arbitrary acts.
After the botched coup attempt of July 2016, Erdogan government passed to another phase by purging more than 4.500 judges and prosecutors as a priority within the first three months and hired more than 14.000 new ones through a non-transparent “accreditation” process. Thus, the risks of having real judges were eliminated. In this process, principles of legality, legal certainty, equality before law, etc. have been devastated. Eventually, there emerged a system which is now named “electoral autocracy” or “autocratic legalism”, which drifted the country from the chance to become a liberal democracy based on a system of checks and balances.
Unfortunately, this defect which ruined the foundations of rule of law seems irreparable unless the people of Türkiye understands that judicial independence is not a luxurious privilege the judges are granted with, but a precondition to guarantee equal protection of each and every citizen’s rights. What is worrisome here is, Erdogan’s stance in this matter is not only a matter of concern inside Türkiye; but also in NATO as it surfaced with the membership process of Finland and Sweden amid the invasion of Ukraine. Maybe it is the high time we all remember Martin Luther King’s warning: “Injustice anywhere is a threat to justice everywhere”.
WGAD Opinion No. 2020/51 concerning Arif Komiş, Ülkü Komiş and four minors (18 September 2020, para.101; Kahraman Demirez, Mustafa Erdem, Hasan Hüseyin Günakan, Yusuf Karabina, Osman Karakaya and Cihan Özkan v. Turkey and Kosovo, WGAD Opinion No. 47/2020; Levent Kart, WGAD Opinion No. 66/2020, 2 February 2021; WGAD Opinion No. 67/2020 concerning Ahmet Dinçer Sakaoğlu, 2 February 2021, para. 96.
 WGAD Opinion No. 2022/8 concerning Alettin Duman and Tamer Tibik (Malaysia and Turkey) (7 June 2022, para.86 and 107
All publishing rights and copyrights reserved to MENA Research and Study Center.