Today, over 150 journalists are incarcerated – many without an indictment, dozens have fled into exile and more than 150 media outlets have been shut down without judicial proceedings.
Human rights protection in Turkey has been scaled back alarmingly in recent years as restrictive government and judicial actions have progressively affected large strata of society. This dangerous path, which runs counter to Turkey’s human rights obligations and undermines social peace and stability in the country, has to be reversed.
In the past five years, I have conducted regular country visits to Turkey and engaged constantly with the authorities, human rights defenders and civil society. This period of time has not been an easy one for Turkey and its people. Numerous deadly terrorist attacks have caused enormous suffering among the population. An attempted coup in July 2016 resulted in 241 deaths, thousands of injured and an existential challenge to the country’s democracy. Next door, a civil war in Syria has been undermining Turkey’s security and draining its resources to provide shelter to almost 3 million refugees.
Amidst these formidable challenges, the Turkish authorities have maintained their cooperation with the Council of Europe and facilitated my work in all its aspects, including in the South-East in a context of continuing counter-terrorism operations. This cooperation has been an opportunity to nurture dialogue on how to ensure that Turkey is successful in meeting these challenges in a manner that complies with human rights standards enshrined in international law, in particular the European Convention on Human Rights.
Unfortunately, this dialogue has not yet yielded the results that Turkey needs.
This is particularly evident in the disproportionate conduct of anti-terrorism operations in South-Eastern Turkey that since August 2015 have caused numerous deaths and affected a very large civilian population. Remedies and investigations into these human rights violations have been largely ineffective, thus reinforcing the sense of impunity among state agents and that of injustice among the population affected.
Long-standing problems concerning freedom of expression have also been severely exacerbated in this tense environment, in particular further to the measures taken under the state of emergency. Political and judicial decisions have stifled dissent through a combination of overly wide application of the concepts of terrorist propaganda and support for a terrorist organisation, as well as an overuse of defamation lawsuits. Today, over 150 journalists are incarcerated – many without an indictment, dozens have fled into exile and more than 150 media outlets have been shut down without judicial proceedings. Tens of thousands of academics and civil servants have been summarily dismissed, 139 members of parliament lost their immunity and some are detained facing criminal charges based on an overbroad interpretation of what constitutes terrorist activity.
The judiciary has played a central role in this deterioration, in particular the criminal judges of the peace. These formations were established in 2014 to mainstream human rights standards throughout criminal proceedings, but have now become one of the main causes of the most obvious violations of freedom of expression. These judges have allowed detentions, media bans, appointment of trustees for the takeover of media companies and internet blocking through decisions which display clearly defective reasoning and a disregard for human rights standards.
The Turkish authorities at the highest political level have recognised that mistakes and injustices have been committed. However, they tend to downplay these problems, sometimes referring to the existence of similar provisions in the legislation of other member states, but ignoring crucial differences in their interpretation or the scale of their application. They also argue that journalists are prosecuted for criminal activity, although the evidence used in courts to substantiate such alleged criminal behaviour is, almost invariably, legitimate critical journalism.
Most recently, in their reply to my latest report in February, they affirm that the measures taken under the state of emergency are constantly reviewed, and that this has led to the reopening of over 300 institutions – among which 20 media outlets – and the reinstatement of over 30 000 public employees. They also highlight that the maximum duration of police custody has been reduced from thirty to seven days, that people in police custody can again consult their lawyers and that an appeals commission has been established to handle complaints about the implementation of emergency measures.
These are encouraging measures. However they are still insufficient to reverse the worrying trend of human rights deterioration. To fully restore human rights protection in the country, the authorities have to take a number of broader political, legislative and judicial measures able to solve not only the excesses of the state of emergency, but also the long-standing problems of restrictions to freedom of expression, misconduct of law enforcement officials and lack of accountability of state agents violating human rights.
For this to happen, it is urgent to revert to ordinary legislation and make it more human rights compliant. To this end the government should first lift the state of emergency and allow for the reversal of the numerous infringements it has engendered. In this context, the appeals commission can be a first step in the right direction, but the closures of media outlets and associations require a more rapid response able to restore urgently freedom of expression in the country. A second critical step is the overhauling of the Criminal Code and the Anti-Terrorism Law so as to distinguish criticism and dissent from terrorist action, and make sure that legislation protects journalists from prosecution when they publish information of public interest. In this context, defamation should be decriminalised and law and practice on freedom of expression aligned with the jurisprudence of the European Court of Human Rights.
Another pressing need is to change a judicial culture that consistently undermines human rights, in particular freedom of expression and media freedom. Judges and prosecutors must stop using criminal procedures to punish and discourage the exercise of legitimate and peaceful dissent and the criminal justices of the peace should be brought back to their original mission of improving human rights protection in criminal proceedings.
Lastly, the government of Turkey must acknowledge publicly the mistakes and human rights violations committed in the fight against terrorism in the South-East, and adopt measures to remedy moral and material damages suffered by the people concerned, be it because of the failure of the Turkish state to protect them from terrorism or the direct effect of the anti-terrorist operations themselves.
With political will, these goals are within reach and would revive the reform process of 2011-2014 during which a series of legislative and judicial changes led to a decrease in the number of journalists in prison and an increased use of alternative measures to detention in trials concerning freedom of expression. In that period, numerous national court judgments were inspired by the jurisprudence of European Court of Human Rights and a national action plan was adopted to eliminate structural shortcomings in legislation and practice.
The security situation in Turkey has changed dramatically since then, but human rights and the rule of law remain the best tool to confront anti-democratic forces, keep social peace and increase public trust. It is in Turkey’s interest to keep upholding them in a time when they are most needed.
Nils Muižnieks, Council of Europe Commissioner for Human Rights
Main picture: Academics lay down their gowns during a protest against the dismissal of academics from universities following a post-coup emergency decree, at the Cebeci campus of Ankara University in Ankara, Turkey, February 10, 2017. REUTERS
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