Countdown to Human Rights Day
Join Angelique Kidjo for a concert for human rights
Statements Special Procedures
18 November 2016
Ankara (18 November 2016) – At the invitation of the Government, I spent this week in Turkey to examine the protection and promotion of the freedom of opinion and expression under international human rights law. Thanks to the support of the Ministry of Foreign Affairs (MFA), which organized my government meetings in Ankara, I met with senior officials at the MFA, the Ministry of Justice, the Prosecutor’s Office, the Ministry of Interior, the Parliamentary Human Rights Inquiry Committee, the Directorate General of Press and Information, the Information and Communication Technologies Authority, the Constitutional Court and the Court of Cassation. I was unable to arrange a meeting with the office of the President or Prime Minister but welcome the opportunity to do so in the future. That said, I want to begin by thanking the Government for its hospitality, its work to make this a successful mission, and its commitment to the United Nations mechanisms.
With the support of the UN Country Team based in Ankara, I also met dozens of individuals in Ankara and Istanbul, such as journalists and writers – including several detained at Silivri and Bakirköy prisons in Istanbul – representatives of non-governmental organizations, lawyers, artists, academic, and politicians.
As special rapporteur, in all cases brought to my attention, I examine freedom of expression issues according to the well-accepted sources of international human rights law. Turkey is a party to the International Covenant on Civil and Political Rights (ICCPR), Article 19 of which is my main source for analysis, and the European Convention on Human Rights. Both protect everyone’s right to hold opinions without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. The right to freedom of opinion permits no exception or restriction. Article 19(3), however, acknowledges that States may restrict freedom of expression so long as the restriction meets the conditions of legality, necessity and proportionality, and legitimacy of the objective. Article 4 of the ICCPR permits derogations from freedom of expression (but not opinion) during declared states of emergences, but only where strictly necessary according to the exigencies of the situation.
This is a preliminary set of observations in very brief form, drafted at the conclusion of a full week of fact-finding. It covers a fraction of all the issues I identified this week and in my research leading up to this mission, and I encourage individuals to continue to reach out to me with their concerns as I draft the full. I will be presenting a full official report to the Human Rights Council in June 2017, and I am mainly prioritizing immediate concerns now while others may yet be addressed in the official report.
An Overview of the Situation
It is noteworthy and important that Government officials throughout the week expressed Turkey’s commitment to the freedom of opinion and expression. They identified a variety of domestic protections, such as those found in the Constitution (Articles 26 and 28) and the judiciary’s review of alleged violations, and the supervisory role played by the European Court of Human Rights. This commitment, if realized, leaves room for optimism about the possibilities for the observance of fundamental freedoms in Turkey’s future.
Every government official I met emphasized the perception that Turkey faces grave threats. The 15 July 2016 coup attempt is appropriately regarded as an assault on Turkish democracy, during which the entire political spectrum rallied around Turkey’s democratic institutions. Hundreds were killed, and the shock of F-16 bombs crashing into Parliament’s grounds, or of tanks on the streets, continues to resonate. One evening, a guide at Parliament showed me the twisted and bombed-out metal that, had the attack taken place at daylight, could have led to countless other deaths.
Turkey also faces threats of terrorism from various actors. ISIS and PKK attacks stand out as horrific examples. Turkey also faces a massive refugee crisis that undoubtedly weighs in the thinking of government officials charged with protecting public order. I have genuine sympathy for the dilemmas the people of Turkey face in confronting terrorism and threats to democratic institutions while at the same time protecting and promoting freedom of expression.
Without a doubt, Turkey faces threats that may justify restrictions under Article 19(3) to protect national security and public order. My concerns center, therefore, not on the fact of restrictions but on the overwhelming number, depth and seeming disproportionality of restrictions that not only touch every aspect of public and private life in the country but are, to my mind, leading Turkey away from the fundamental guarantees available in every genuinely democratic society. In this I am not alone. To name two, the Human Rights Commissioner of the Council of Europe and the European Commission report on Turkey have raised alarms in recent weeks, and for very good reason.
To put the situation in terms of my evaluation under Article 19, I ask the following questions: Are the restrictions on expression necessary to protect national security or public order? Are they proportionate? Do the restrictions amount to interference with opinion, which are impermissible under Article 19? Do the processes of challenge and appeal, if they exist at all, comply with the requirements of legality and rule of law?
Allow me to define the terms of this evaluation by way of illustration, underlining the grave concerns I have about the legal situation for compliance with freedom of expression norms:
Legal Framework in Turkey
Perhaps the most important feature of the current situation is the lack of legal clarity. Throughout my visit, individuals expressed bewilderment and pain at the application of these broad legal provisions. The Government’s point of view is that people are expressing themselves in ways that promote terrorism. It is understandable and often necessary that a Government should restrict incitement to violence. Yet it appears nearly impossible to pin down what it means exactly to “promote” terrorism, and in situation after situation brought to my attention, restrictions seemed unrelated to incitement but rather closely tied to reporting and the public’s right of access to information.
There are several main laws whose revision – or short of that, a commitment not to apply them in such broad terms – would advance the cause of freedom of expression. Again, there are others, but at this point I would highlight the following:
These provisions – separately and sometimes in conjunction with one another, along with other provisions I have not named here – have been used in ways that undermine rights to opinion and expression, as discussed elsewhere in this statement. They are principally problematic in the vagueness and breadth of their language, leaving excessive discretion in government officials.
Journalists and writers in prison
The terrorism and defamation laws have been used for some time to crack down on writers and journalists, a situation exacerbated since July by the emergency decrees. Depending on how you count, up to 155 journalists or media workers are held in prison today, highlighting the fact that reporting and writing opinion have been redefined as support for terrorism under the application of Turkish law. This number is astonishing even in the context of the threats highlighted by the Government and raise major questions not only of necessity and proportionality but even, particularly in the broader context of media house shutdowns, whether restrictions are based upon illegitimate grounds such as government criticism. Such numbers do not reflect the many journalists and writers who were previously detained and released but continue to face charges and potential imprisonment, resulting in a revolving door of detention.
Because of my mandate’s historic concern for the safety of journalists and writers, I sought access to a number of detainees. The Ministry of Justice denied me access to the writers and journalists Asli Erdogan, Ahmet Altan, Mehmet Altan, Kadri Gursel, Murat Sabuncu, Turhan Gunay, and Musa Kart.
The Ministry of Justice permitted me to visit five individuals affiliated with Cumhuriyet newspaper held at Silivri Prison in Istanbul: Hakan Karasinir, Bülent Utku, Güray Tekin Öz, Mustafa Kemal Güngör, and Onder Celik. We were permitted to visit the writer and acitivist Necmiye Alpay at Bakirköy Women’s Prison in Istanbul. I spoke with lawyers for or associates of other detainees.
I am glad to report that all six detainees whom I visited seem to be in good health. However, the men held in Silivri, which houses thirteen thousand prisoners, reported an initial detention process that involved days without access to information about the charges against them, or access to legal support, and at least two days of sleep-deprivation that culminated in a 2 a.m. court presentation. They have limited access to a lawyer, books, pen and paper, or other ways to access information or communicate with the outside world. They expressed total bewilderment at the basis for their detentions.
Necmiye Alpay enjoys a somewhat better situation at Bakirköy, such as fuller access to books and pen and paper. However, she is a seventy-one year-old woman, a writer and editor whose only crime appears to be association with a Kurdish newspaper since closed. The prize-winning author, Asli Erdogan, held with her, suffers from health concerns, and I regret that we could not see her.
The broader attack on media
Media freedom in the country was already in crisis prior to the attempted coup, including closure of critical media, media associated with Gülenists, and broad use of anti-terror legislation against journalists. In response to the failed coup, the breadth and scope of the crackdown on media freedom has intensified dramatically, with measures of an unprecedented scale being justified on grounds of ensuring stability.
I heard repeated personal stories of media workers and government critics being arrested and harassed, and independent newspapers and broadcasters being forced to close. For instance, at least twelve television and eleven radio stations have been shut down by way of emergency decree. As a result of the media shutdowns, over 3,000 journalists are currently unemployed and hundreds of the yellow press cards have been cancelled. Following the coup attempt, media outlets subject to the emergency decrees have not been limited to allegedly FETÖ-affiliated media; the closure of Özgür Gündem (a leftist pro-Kurdish newspaper), the attempted closure of Evrensel (a socialist/workers’ newspaper), and police raids on Cumhuriyet (a critical, secularist paper), are examples of how the state of emergency in Turkey has been deployed against dissident or critical journalism.
Of particular concern is the apparent decimation of all forms of media in the southeast, particularly Kurdish media, leading to massive lack of access to information.
I am also concerned about repeated bans in the wake of terrorist attacks, thereby limiting the public’s access to information. Particularly in the southeast, restrictions have amounted to complete media blackout on coverage of the conflict with the PKK.
Mass firings of academics
Over the course of the current year, the Government has launched at least two sets of actions against academics. The first began on 11 January 2016, when more than 1400 academics in Turkey and abroad published a statement expressing concern about the failing peace process with the Kurds in southeast Turkey. In response, at the instructions of the Higher Educational Council, many university administrations have taken disciplinary actions, including removals, against signatories. The Government has stated that the petition signed by the academics echoed a statement previously made by one of the leaders of the PKK: More than one thousand academics in Turkey have been subject to anti-terrorism police operations and widespread harassment. At least twenty academics have been detained and investigated by the Istanbul prosecutor’s office.
Since that first wave, thousands more academics have been removed from their positions in the wake of the 15 July coup attempt. I spoke with academics who could not identify a particular cause for their removal, as they had no connection to the coup or its plotters, or to PKK, and yet they were forced out of their positions and then denied a passport that would allow them to work abroad.
Attack on digital rights: content takedowns, network shutdowns
I have learned of a vast wave of Internet shutdowns and content takedowns that have taken place in recent years, accelerating since the 15 July coup attempt. Social media take down requests, for instance, are expansive, as one sees in Twitter’s regular transparency reports. Following decisions by the Constitutional Court and the European Court of Human Rights, holding that the government could not block access or shut down a network without a court order, Turkey amended its law accordingly. Many access denials are based on Law 5651 noted above. Decree no. 671 of 17 August 2016, expands the ability of the Government to shut down networks or take down content. There appears to be extremely limited room for appeal of Government decisions in this respect.
The Government asserts that shutting down communications networks, particularly in crisis situations may serve to limit attacks, but it also forces individuals to be in the dark. Citizens cannot communicate with one another, or access information that might contribute to their safety or provide one another with support. Lengthy network shutdowns have been shown in particular to have a strongly negative economic impact.
Internet news sites and individual social media accounts have been routinely subject to blocking orders. During the state of emergency, this has increased, with Twitter reportedly complying with requests to withhold Kurdish media twitter accounts in Turkey, including that of the Kurdish daily newspaper Özgür Gündem. Blocking orders are issued by courts and owners are usually not informed of the order. The orders frequently order the blanket blocking of an entire website without specifying the offending content.
Attack on opposition and civil society
Just before I arrived on this mission, I learned that the Government suspended up to 370 non-governmental organizations operating in Turkey under emergency decree in one day. I met with some representatives subject to this order, who expressed disbelief that their work could be considered associated with terrorism or terrorist groups. This most recent action highlights a broad problem for civil society and dissenting voices operating in the country. I want to identify a few of these problems, which I will expand upon in my later report.
Rule of law, separation of powers, and independence of the judiciary
In my report next year, I will address more fully how the situation for the judiciary is undermining freedom of opinion and expression. It is clear that members of the Turkish judiciary (the Court of Cassation and the Constitutional Court) take enormous pride in adhering to the European Convention on Human Rights and incorporating the jurisprudence of the European Court of Human Rights into its decisions. I am especially concerned that, pursuant to Law No. 6545 of 2014, the system of Criminal Judicature of Peace (or Criminal Peace Judges) is streamlining cases in such a way as to limit the ability to appeal and challenge emergency decrees. The Venice Commission has also identified a range of problems that interfere with the independence of the judiciary.
Since the coup attempt in July, the situation has escalated. The judiciary was charged with carrying out administrative investigations into its officers and an alarming number of prosecutors and judges were dismissed. 3,626 judges and prosecutors were removed under emergency decree, with only 198 so far being reinstated. Several dozen judges, including one judge serving in the Mechanism for International Criminal Tribunals (MICT), Judge Aydin Sedaf Akay, have been detained. We sought but were denied access to visit Judge Akay.