In the first of a series of blogs on Turkey, Alev Yaman reports on the country’s latest Judicial Reform Package.
Since 2009, Turkey has been passing yearly reform packages in an effort to harmonise legislation with standards set out in European conventions and treaties as part of the country’s marathon EU accession process. Progress has been frustratingly limited, largely because Turkey has refused to review and change its legislation comprehensively according to European principles. Instead it has chosen to go through a yearly pruning exercise, making minor adjustments to problematic legislation that is in dire need of root and branch reform.
Despite plenty of hype, the latest series of reforms, known as the 4th Judicial Reform Package, falls very much alongside its predecessors in failing to tackle the underlying issues behind Turkey’s freedom of expression crisis. Freedom of expression violations account for two-thirds of rulings against Turkey at the European Court of Human Rights (ECtHR), and in spite of the claims of Turkish legislators (freedom of expression is even mentioned in the draft proposal’s title), the new reforms have the potential for only very limited progress.
What has changed?
Articles 6/2 (‘making declarations or announcements for a terrorist organisation’) and 7/2 (‘making propaganda for a terrorist organisation’) of the Anti-Terror Law have been amended to include a requirement that only written work ‘that legitimises or praises, or incites [others] to resort to a terrorist organisation’s coercive, violent or threatening practices’ shall be considered to constitute illegal comment.
Previously, there was no clear or precise definition of what ‘declarations,’ ‘announcements’ or ‘propaganda’ constituted, which led to the law being broad enough to render academic publications (in the case of Büşra Ersanlı), news reports and even headlines (in the case of Reyhan Çapan) on the Kurdish issue as ‘propaganda’ in the eyes of prosecutors and judges; in particular, reports considered to be unflattering to the Turkish army or written with an undesirable slant were vulnerable to this interpretation of the law. The revised law does not address this. It also fails to provide clarity regarding what constitutes ‘legitimisation’ and ‘incitement’: Turkish courts have historically taken a very broad view of incitement. While some parts of the media have claimed this amendment will lead to the release of scores of journalists accused under the Anti-Terror Law, others claim that because the new law is too vaguely worded no change will be forthcoming. Much appears to be left to the interpretation of judges. This seems to be a move designed to bolster Turkey’s defence in future ECHR cases rather than one aimed at relieving the real problem: the ability of writers and journalists to engage in legitimate comment without facing the threat of imprisonment.
The other amendment to the Anti-Terror Law regards the use of slogans, iconography and uniforms ‘belonging to a terrorist organisation’ (this is also covered by Article 7/2). This previously used to apply only in the context of meetings and demonstrations; the new law extends this to any situation. This is a curiously restrictive move for what was billed as a progressive reform package.
Article 215 (‘praising offences or offenders’) of the Turkish Penal Code has also been amended; positive comment about a crime or convicted individual can now only be illegal where ‘a clear and imminent danger to public order comes about as a result’ (previously, all positive comment regarding ‘offences and offenders’ was illegal).
Turkish courts have largely interpreted ‘a clear and imminent danger to public order’ very broadly in Article 216 (‘inciting the population to enmity or hatred’) cases in the past, and there has been heated debate among legal experts about the ramifications of such a broad interpretation to Article 215 – proponents have suggested that a narrow interpretation would enable the glorification of perpetrators of political violence (such as Hrant Dink’s assassins), while those opposing them have suggested that a broad interpretation would lead to the continued penalisation of those showing solidarity with imprisoned/deceased leftist and pro-Kurdish figures. It remains to be seen where the Turkish courts will fall on this.
The amendment is very much in response to criticism regarding this article from the European courts; in European law, public order is generally considered to be a legitimate justification when limiting freedoms if a strong enough argument for it can be made.
Article 220/8 (‘making propaganda for an illegal organisation or its objectives’) of the Turkish Penal Code has had the phrase words ‘or its objectives’ removed from it. Instead, it is now illegal to make propaganda for an illegal organisation ‘by legitimising or praising, or inciting [others] to resort to its coercive, violent or threatening practices’.
The removal of the words, ‘or its objectives’, is significant; the previous law allowed for propaganda charges to be brought against those who had written positively about a proscribed organisation’s ideological ‘objectives’. Removing those words does make this offence a lot narrower in scope. However, this amendment carries the same concerns regarding interpretation as the amendments to the Anti-Terror Law mentioned above, and it remains to be seen whether it will result in the release of prisoners.
Finally, Article 318 (‘discouraging the public from enlisting in the armed services’) of the Turkish Penal Code, essentially penalising writings that may encourage conscientious objection,has taken a step backwards, with the addition of a provision that further targets conscientious objectors : ‘persuading or instigating the public… to commit desertion’. Even the most conservative legal experts in Turkey agree that this article will continue to prompt ECHR violations.
What more should have been done?
The majority of writers and journalists are suspects caught up in KCK and Ergenekon investigations. (The KCK is the alleged civilian/urban offshoot of the Kurdish separatist PKK, which has been engaged in armed struggle with the Turkish Army since 1984; Ergenekon is an alleged coup conspiracy against the government). They are facing charges of ‘membership’, designed to impose lengthy prison sentences on suspects. These include membership of an ‘illegal organisation’, which is loosely defined, and ‘armed organisation’ (under Article 220 and 314 of the Turkish Penal Code respectively), which can be brought alongside ‘terrorist organisation’ charges that are part of the ATL (one of our focus cases, investigative journalist Ahmet Şık, faces precisely such a combination of charges). Rather absurdly, these articles clearly set out that actual membership of an illegal, armed and/or terrorist organisation is not a prerequisite for such membership charges, as was the case for Ragıp Zarakolu (charged under Article 220/7 of the Turkish Penal Code in this way). The fact that these highly problematic areas of the law have escaped reform is a major disappointment; the majority of Turkey’s writers and journalists at risk will continue to face trial or detention as a result. The failure to reform these laws substantially poses a threat to free expression should the political climate in Turkey harden in the future.
Furthermore, yet another opportunity to repeal Articles 216 (‘inciting the population to enmity or hatred; and religious defamation’), 226 (‘obscenity’) and 301 (‘insulting the Turkish nation, state, any of its state institutions or people’) of the Turkish Penal Code has been missed. PEN has on its records a number of writers and publishers penalised under these articles. Overall, this judicial reform package repeats a now tired pattern of yearly, negligible progress. Bold, comprehensive reform continues to be needed in Turkey.
Alev Yaman, a human rights advocate and translator, has worked for various London-based organisations specialising in freedom of expression, migration studies and the rule of law. She is currently working as a Turkey consultant for English PEN, having previously been a Research and Campaigns Officer at PEN International.