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Advocates of Silenced Turkey

PRESENTATION ABOUT PERSECUTION OF WOMEN AND CHILDREN IN TURKEY

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PRESENTATION ABOUT PERSECUTION OF WOMEN AND CHILDREN IN TURKEY

The prison conditions for women and children are exceedingly alarming. According to the Justice Ministry, as of 2017, nearly 10,000 women and 3,000 children under 18 are in Turkey’s prisons. The inhumane prison conditions also hold weight in women prisons.
They face additional issues of the male security staff frequently obstructing their privacy during hospital visits, oftentimes leading to an incomplete examination. Among the prisoners, there are pregnant women or women who just gave birth and 677 children under 6 years old imprisoned along with their mothers – including 149 infants under 1-year-old. Pregnant women were forced to stay with other inmates in overcrowded cells, also denied access to proper prenatal care – posing serious risks to their well-being. Likewise, mothers with children were also forced to share a cell with inmates.

Detail information is included in 17 pages presentation.

 

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CALL FOR INVESTIGATION: Brutal Stabbing Attack on Businessman Hazim Sesli at Menemen Penitentiary

 

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Brutal Stabbing Attack on Businessman Hazim Sesli at Menemen Penitentiary

Advocates of Silenced Turkey urges all relevant institutions of the International Human Rights community to petition the Government of Turkey as follows:

  1. The Ministry of Justice and the Menemen Type T Penitentiary must urgently carry out a thorough, prompt, independent and impartial investigation into the attack in the custody of Businessman Hazim Sesli in order to determine (a) how a deadly weapon was brought into the prison, (b) why the assailant was left unsupervised for the duration of this nearly fatal attack, and (c) whether prison staff have been involved in planning the attack.
  2. Turkish authorities must urgently provide information to resolve questions and suspicions about the Hazim Sesli incident as well as all other allegations of ill-treatment, including violations by guards and other prisoners, of Hizmet Movement members imprisoned for political reasons.

Facts of the Hazim Sesli Incident

Businessman Hazim Sesli, arrested after being detained as part of the investigations against the Hizmet Movement, was attacked while talking on the phone with his family at 4:20 PM on March 11, 2020, at the Menemen Prison. Sesli was stabbed in 7 different parts of his body by another prisoner. Sesli first received medical attention in the prison infirmary in the aftermath of the attack and was later transferred to a hospital for further treatment.

According to information received by AST, Hazim Sesli, as part of Usak 2. Assize Court’s case No. 2016/204 E, has been a prisoner at the Menemen Type T Closed Penitentiary since October 21, 2015.

Testimony received by TR 724 News indicates that while Mr. Hazim Sesli stayed in an 8-person dormitory-style cell until September 9, 2016, he was arbitrarily transferred into solitary confinement without an official explanation from the Menemen Type T Closed Penitentiary Administration. It was asserted that this transfer was requested by the Ministry of Justice. However, in all applications submitted by Hazim Sesli’s legal representatives, they were told by the Ministry of Justice that a transfer request had not been made; the ministry added that the decision to transfer Sesli was at the discretion of the Menemen Penitentiary.

Hazim Sesli had not been interviewed since his transfer to solitary confinement. On March 11, 2020, at exactly 16:20, Hazim Sesli was stabbed by Fatih Oktay while on a phone call with his family. While on the phone, Hazim Sesli first noticed the attack when the assailant accidentally stabbed the phone in his hands. Sesli attempted to protect his life against the stabber who repeatedly attempted to stab his heart. Prison guards intervened, however, Sesli had incurred 7 severe injuries, including two stabbing wounds on his left hand, two wounds on his left leg, and 3-4 wounds on his hips.

The assailant, Fatih Oktay, is a two-time murderer and known for skinning the head of another prisoner in the past. The fact that Oktay, a violent criminal, was left in the same phone area as Hazim Sesli without supervision raises suspicions and numerous questions about the security conditions at the Menemen Penitentiary. More crucially, when Hazim Sesli was brought back from the hospital after his treatment, a prison guard has reportedly intentionally brought Sesli to the assailant’s cell to confirm Sesli’s return to the penitentiary.

Relevant Human Rights Institutions

  1. United National Human Rights Committee

Petitions Team
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10 (Switzerland)

Fax: + 41 22 917 9022 (particularly for urgent matters)
E-mail: petitions@ohchr.org

  1. Committee Against Torture

Petitions and Inquiries Section
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10, Switzerland

E-mail: petitions@ohchr.org,
TB-petitions@ohchr.org,
cat@ohchr.org,
registry@ohchr.org

  1. Tom Lantos Human Rights Commission

Tom Lantos Human Rights Commission
House Committee on Foreign Affairs
5100 O’Neill House Office Building
200 C Street SW
Washington, D.C. 20515
United States of America

Phone: +1 (202) 225-3599
Fax: +1 (202) 226-6584
Email: TLHRC@mail.house.gov

  1. S Helsinki Commission

234 Ford House Office Building
3rd and D Streets SW
Washington, DC 20515

Email: info@csce.gov

  1. Working Group on Arbitrary Detention

Mr. José Guevara,
Ms. Leigh Toomey,
Ms. Elina Steinerte,
Mr. Sètondji Adjovi,
Mr. Seong-Phil Hong

Email: wgad@ohchr.org

  1. The Honorable Dunja Mijatovic

Office of the Commissioner for Human Rights
Council of Europe
Avenue de I’Europe F-67075
Strasbourg Cedex, France

Tel: +33 (0)3 88 41 34 21
Fax: +33 (0)3 90 21 50 53
Email:  commissioner@coe.int

  1. The Honorable Abdülhamit Gül

Minister of Justice
06659 Kizilay
Ankara, Republic of Turkey

Email: info@adalet.gov.tr

 

Contact Us:

help@silencedturkey.org 
Phone: 646-504-2088

 

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WOMEN IMPRISONMENT IN TURKEY INCREASED %470

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Since 2005, women imprisonment in Turkey increased by 470%.
As of 2019, there are more than 10,000 women in prisons, with more than 3000 children.
There are more than 780 babies imprisoned with their moms, and there are more than 500 babies who are separated from their moms due to imprisonment. Not only women who had just given birth, but also pregnant women are imprisoned.

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Human Rights Digest: February 2020 Articles

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TURKEY: MONTHLY HUMAN RIGHTS DIGEST February 2020

  1. The Lawless Judiciary: Philanthropist Osman Kavala Rearrested Hours After Acquittal

    [
    https://www.al-monitor.com/pulse/originals/2020/02/turkey-kavala-case-may-lead-countrys-expulsion-from-europe.html]

    On February 18th, Istanbul’s 30th Heavy Criminal Court acquitted businessman and philanthropist Osman Kavala who was one of eight defendants on trial for their alleged involvement in planning, managing and directing Gezi Park Protests. Kavala spent 840 days, or more than two years, in pretrial detention before the court acquitted him of all charges. Only a few hours after his acquittal, the Istanbul Chief Public Prosecutor’s office issued a new order for Kavala’s re-arrest, this time due to allegations of his involvement in the failed military coup of 2016. The Prosecutor’s politically charged warrant for Kavala provides a glimpse into President Erdogan’s unrelenting crackdown on all dissidents through the extensive use of loyalist judges and prosecutors. In the words of Emma Sinclair-Webb, the Turkey director of Human Rights Watch, detention of Kavala immediately after his release has shown the judiciary is “lawless and vindictive.”

  2. Former Legal Advisor to the General Staff of the Turkish Armed Forces: “I am Honored to Be in Prison”

    [https://www.tv100.com/fetonun-askeri-yargi-davasinda-karar-haber-482207]

    On January 24, as part of the ongoing failed military coup trials, Istanbul’s 25th Court of Assize found 17 defendants guilty. The Court sentenced 4 defendants to aggravated life sentences, 2 to life sentences, and 13 to varying sentences between 7.5 to 10.5 years. All defendants had been in custody for years awaiting a trial, a long wait which amounted to punishment on its own. More importantly, the court’s partiality and willingness to carry out the Erdogan administration’s vendetta against political enemies drew a vocal criticism from Muharrem Kose, one of the defendants, who described the situation as follows: “I am honored to be in prison in a judicial order where men like Ahmet Altan continue to be behind bars. I don’t believe you will deliver a fair judgment today. May God give judges sitting on this bench a long life so that you can be tried legitimately for your illegitimate actions.”

  1. 5 Months Pregnant Mother Imprisoned & Forced to Give Birth Under Police Supervision

    [https://tr.euronews.com/2020/02/21/elif-tugral-bes-aylik-hamileyken-cezaevine-girdi-tutuklu-dogum-yapti-anne-yogun-bakimda]

    On February 21st, Elif Tugral gave birth to her second child, a son, after spending the final four months of her pregnancy in Sakran Penitentiary in the city of Izmir. Sentenced for 6 years and 10 months, Elif Tugral was found guilty of maintaining a bank account with the now-defunct Asia Bank (“Bank Asya”). Taken into custody while five months pregnant, Elif Tugral was forced to carry out the rest of her pregnancy under duress in abysmal prison conditions while suffering from a multitude of health issues, including a potentially fatal chronic intravascular coagulation condition. In words of her husband, Nuri Tugral, “[Elif] gets hospital visits but it’s very grueling. She travels to the hospital in prisoner transport vehicles for nearly 2 hours with lots of shaking and wobbling on the road.” After four painful months, Tugrul was taken to the hospital by 10 police officers who refused to leave and adamantly supervised her during and after she gave birth. In his reaction to the tragic event, Parliamentarian Gergerlioglu tweeted: “10 male officers brought the mother to the hospital. They waited at the door. Why, how would she even escape?”

  2. Guilty Until Proven Innocent: Former Secretary-General Sentenced Due to $1 Bill

    [https://www.sabah.com.tr/gundem/2020/01/30/eski-askeri-yargitay-uyesi-mehmet-simseke-feto-uyeliginden-hapis-cezasi-verildi]

    On February 1st, the Turkish Court of Cassation’s Penal Chamber sentenced Mehmet Simsek, the former Secretary-General of the Military Court of Cassation, to 7.5 years for his alleged affiliation with the Hizmet Movement. In trial, Simsek complained that he faces major public prejudice because of his removal from office and imprisonment after the 2016 coup attempt. He argued that he not only had no affiliation with the coup attempt but he had already submitted his plans for retirement in August of that year. In line with all political imprisonments under the leadership of AK Party and Erdogan, the Court of Cessation found Simsek guilty of all charges, presenting the 1 US Dollar bill found in his apartment as evidence of supposed affiliation with the Hizmet Movement. Simsek’s case sheds light on the breakdown of the Turkish criminal justice system under the current government’s draconian crackdown on all voices of opposition.

  3. President Erdogan uses 3.5 Million Syrian Refugees for Barter with EU

    [
    https://www.bbc.com/news/world-europe-51687160]

    On February 29th, Turkey’s President Recep Tayyip Erdogan made an official statement after ordering the Turkish-Greek border gate to be opened. In his statement regarding 3.5 million Syrian refugees who were taken into the country by Mr. Erdogan’s own administration, Erdogan proclaimed “We will not close these doors in the coming period and this will continue. Why? The European Union needs to keep its promises. We don’t have to take care of this many refugees, to feed them.” At the time of publication, 18,000 refugees were allowed to cross the border as part of Erdogan’s plan to extract more money and resources from the EU.


 

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TURKEY’S HUMAN RIGHTS RECORD IN NUMBERS

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ABDUCTIONS
Turkish dissidents kidnapped from Europe and other countries by Erdogan’s long arm. Turkey has snatched over 100 alleged members of the Gülen movement from other countries in recent years. 28 innocent individuals were abducted in Turkey and some were tortured.

JOURNALISTS
An estimated 175 journalists and media workers are in pretrial detention or serving sentences for terrorism offenses at the time of writing. Hundreds more are on trial but released under supervision.

WOMEN AND CHILDREN
There are 780 babies imprisoned along with their mothers who have not committed a crime, been proven guilty of any offense, or officially indicted for any offense.

TORTURE & ILL-TREATMENT
Prisoners and detainees have been under systematic torture and ill-treatment, more severely during the state of emergency. 93 prisoners have lost their lives due to torture, ill-treatment, and negligence. Another group of 11 individuals lost their lives under arrest and during interrogation due to torture. Tragedies include Gokhan Acikkollu who died after 13 days of sustained torture in police custody and Ayse Ozturk, a 44-year old woman, who was subjected to electric shocks, physical assault, and threats of rape while in custody.

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THE DECISION OF SUPREME COURT OF BRAZIL ON THE EXTRADITION REQUEST OF A HIZMET MEMBER

 

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INTRODUCTION 

This document is the translation of the vote of the Federal Supreme Court’s Minister Edson Fachin, rapporteur on the extradition process against Ali Sipahi; a Hizmet inspired businessman, who was arrested on April 5, 2019, on his return from the U.S. The arrest request was made by the Turkish Government. The lawsuit was opened after the coup in 2016, and the content is the same/similar to thousands of other absurd arrests like being part of a terrorist organization (referring to members of the Hizmet Movement), for having an account with Bank Asya (which was a commercial bank and was in legal operation until it was closed after a coup in 2016), being a representative of the Turkish Chamber of Commerce in Belo Horizonte and supporting the Cultural Center. 

Pre-trial detention in the case of extradition requests is the rule in Brazil. So, Ali was immediately arrested on landing in Brazil. He spent 34 days in prison at the federal police headquarters in São Paulo. After extensive media coverage and the reaction from society in general, his case was analyzed faster than normal, and a hearing was scheduled for 06.08.2019 for the second panel of the Supreme Court, which has five members. 

At this hearing, in addition to Ali’s lawyers, other entities defended him against this extradition, as amicus curiae. The result was five votes to 0, and Ali was acquitted. Each minister made a long statement explaining their votes. The lack of independent justice in Turkey, the reality of torture for prisoners; the non-existence of independent powers; the content of the political accusation of the process, which is not considered a crime in Brazil; that the Hizmet movement is not a terrorist organization; the absurd numbers of prisoners right after the attempted coup and the direction that Turkey has been taking since then were cited as the reasons for the non-extradition. All these facts make it clear that the country has entered an authoritarian regime, and baseless charges against critics and opponents are standard in those regimes, and this process is one of those. 

The collective ruling that reports the votes of the five ministers was not ready until the translation of that document. But, as Minister Edson Fachin was rapporteur of the process, his vote serves as a summary of other votes and the positioning of the Supreme Court of Brazil. 

EXTRADITION PROCESS 1.578 FEDERAL DISTRICT VOTE 

Link for the original in Portuguese:
https://www.conjur.com.br/dl/stf-nega-extradicao-turco-naturalizado.pdf 

Mr. Fachin (Rapporteur): The request for extradition for investigative purposes was submitted through diplomatic channels by the Government of Turkey to the detriment of its national ALI SIPAHI, through Note Verbale No. 694/2019, on the basis of the promise of reciprocity for similar cases. 

The Turkish Government has submitted a request for the extradition of ALI SIPAHI, based on the promise of reciprocity for similar cases, according to the provisions of Article 84 (2) of the Law 13.445/2017. 

The Ankara Court of Peace (Turkey) issued a warrant of arrest No. 7 dated 26 June 2018 for investigation 2017/1204200. The acts attributed to the extradition were allegedly committed in the city of Ankara, Turkey, and are allegedly part of the Fethullah Güllen Armed Terrorist Organization/The Parallel State Structure (FETÖ/PDY), which is subject to imprisonment of between 7.5 and 15 years, in accordance with Articles 314/2, 53/1, 58/9 and 63 of the Criminal Code of the Republic of Turkey, as well as Articles 5/1 and 7/1 of its Anti-Terrorist Law. 

Typical behaviors were described in the application: 

“In a phone call on December 25, 2013, Fetullah Gülen, who is the leader of the Armed Terrorist Organization of Fethullah Gülen/The Parallel State Structure (FETÕ/PDY) was examined by the Ankara Public Prosecutor’s Office in the framework of investigation 2014/37666 (…. ) ordered the members of the Organization to put money from their personal accounts in Bank Asya, the bank of the Fethullah Gülen/A Parallel State Structure (FETÕ/PDY). 

(…) following Fethullah Gülen’s order, the defendant ALI SIPAHI deposited money in his bank account at Banco Asya, between 31 December 2013 and 24 December 2014, in the amount of 1,721.38 Turkish liras. 

(…) As a result, he supported the terrorist organization with funding. 

I will now examine the grounds provided for in the recent Migration Law (Law 13,445/2017): 

  1. Extradition of a naturalized Brazilian 

Preliminarily, I eliminate the obstacle provided for in article 5, LI, of the Constitution, since the exception provided for in the same constitutional provision applies to the species, since it concerns the extradition of a naturalized Brazilian, who is attributed with typical conduct practiced before naturalization. 

The subject of this extradition case, ALI SIPAHI, a Turkish national, born on 1 July 1988, of Ahmet Sipahi and Gulser Sipahi, resident of the State of São Paulo, obtained Brazilian citizenship by naturalization on 19 October 2016 (Ordinance No. 213, of 13 October 2016). 

The crimes attributed to him would have been committed in the years 2013 and 2014, in a period prior to naturalization, which took place in 2016, without the constitutional obstacle. 

  1. Non-retroactivity of Brazilian criminal law 

The offense of armed terrorist organization is provided for in Article 314.1 of the Turkish Criminal Code (No. 5237) with a prison sentence of 10-15 years. The defendant’s conduct is also covered by the Turkish Anti-Terror Law 3713/1991, as amended in 1995, 1999, 2003, 2006, and 2010. 

In the Brazilian legal system, Law 13.260/2016 disciplines terrorism and reformulates the concept of terrorist organization: 

Art. 6 Receiving, providing, offering, obtaining, conserving, keeping in deposit, requesting, investing in any form, directly or indirectly, resources, assets, goods, rights, securities or services of any nature, for the planning, preparation or execution of the offenses provided for in this Act: 

Sentence – confinement, fifteen to thirty years. 

However, the retroactive application of Brazilian criminal law does not seem feasible. As noted above, the extradition request reports that the events took place between 31 December 2013 and 24 December 2014, during which time “on the order of Fethullah Gülen, the accused ALI SIPAHI deposited 1,721.38 Turkish liras into his bank account at Bank Asya”. 

The Brazilian legislation that complies with the constitutional mandate, typifying the crime of terrorism, only came to light on 16 March 2016, with the publication of Law No. 13,260 of that year. 

At the time of the practice of the accused conducts, there was no criminalization in the common Brazilian criminal law, with the obstacle of the non-retroactivity of the Brazilian criminal law and, therefore, the impracticability of extradition. 

In this regard, the Court has already noted in a vote to stone the dean of this Supreme Court, Min. Celso de Mello:

“The legal meaning of the constitutional principle of the reservation of the law with regard to the classification and commission of crimes (CF, art. 5, point XXXIX, nullum crime nulla poena sine praevia lege. Double criminality: criterion governing the extrajudiciall system. The need for the fact underlying the request for extradition (or the request for provisional arrest for extrajudicial purposes) to be simultaneously criminalized, at the time of its practice, both in Brazilian and in foreign State’s criminal legislation. (…) Innocent situation in the case, since the punishable conduct attributed to the denounced foreign subject only began to be considered criminal in Brazil, in April 2013 (when the vacatio legis period of Law 12.737/2012, art. 4, was exhausted). Therefore, subsequently, until the date, it was allegedly practiced in the United States of America”. (EPP 732-QO, Min. Celso de Mello, trial 11/11/2014, Second Class, DJE 02/02/2015. 

In another trial, the Court ruled, also under the direction of Justice Rapporteur Celso de Mello: 

Extradition and dual criminality. ….provided that the act charged constitutes a crime under the dual perspective of the legal systems in force in Brazil and in the foreign State that requires the application of the extradition measure. (…) What really matters, in the evaluation of the double criminality postulate, is the presence of the structuring elements of the criminal type (essentialia delicti), as defined in the primary incrimination precepts contained in the Brazilian legislation and in force in the positive order of the requesting State, independently of the formal designation they attribute to the criminal acts. 

(Ext. 953, Rel. Min. Celso de Mello, a sentence of 28 September 2005, Plenary, DJ of 11/11/2005). 

The first obstacle to extradition is, therefore, the absence of double criminality, which is why Brazilian terrorism law is post- facto and, therefore, inapplicable. The essential requirement of double criminality has therefore not been met. 

  1. Characterization of political crimes 

The second obstacle to granting the extradition request lies in the political characterization of the criminal conduct attributed to the extraditing party. 

According to the charges made in the extradition trial, the extraditing ALI SIPAHI, following an order from the religious leader, deposited money in the bank account of the aforementioned institution, which would have occurred between 31 December 2013 and 24 December 2014 in the amount of 1721.38 Turkish liras, when Brazilian legislation did not yet classify the conduct charged with extradition as terrorism

It could be argued that the conduct would fall within the criminal types contained in the National Security Act, Act No. 7,170, in force since 14 December 1983, when, in which the conduct imputed to the accused is concerned, has the following description: 

Art. 16 – Integrate or maintain an association, party, committee, class entity or group that aims to modify the current regime or the rule of law, by violent means or with the use of serious threats.

Sentence: Confinement, 1 to 5 years.

Art. 17 – Attempt to change, by the use of violence or serious threat, the order, the current regime, or the rule of law.

Sentence: Prison, 3 to 15 years.

Single Paragraph – If the serious bodily injury occurs, the penalty is increased by half; if death occurs, it is increased by twice. 

The jurisprudence of this Court has already recognized that, at least in the specific legislation, political crimes are those defined in Law No. 7,170/83, which defines crimes against national security and political and social order. In this line of interpretation, the conduct with which the accused is charged would be provided for in the national security law and, ipso facto, would also be characterized as a political offense. 

The scope of the prohibition of extradition for political offenses is reflected in foreign doctrine. In Ivan Anthony Shearer’s work, we find the beginnings of the fence: 

The exception for political offenses first appeared in the extradition treaty between Belgium and France in 1834. 

The philosophical concepts generated by the French Revolution encouraged participation and political change and legitimized resistance to tyrannical rule. Therefore, granting asylum to political offenders was conceived as a duty in almost all cases. 

One of the first countries to adopt specific domestic legislation exempting political offenders from extradition was Belgium in 1833. The first treaty on the exemption from the political offence of extradition appeared in the treaty between France and Belgium in 1834. 

(I A. THE SHEARER, EXTRADITION IN INTERNATIONAL LAW 16 (1971) 

Steven Lubet and Morris Czackes put the latest concerns in the field of political dissidence and the necessary protection of individual freedom: 

The growing concern for individual freedom, political dissent and human rights in the world has recently given rise to several international representations. International concern may have peaked with the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. The authors of the Declaration sought to promote an uninhibited political debate by providing foreign nations with the possibility of granting asylum to those accused of political acts. 

The exception for political crimes is not limited to non-violent dissent; revolutionary or counter- revolutionary violence can also be protected from extradition. While this view may occasionally lead to unpleasant results, it is clear that revolution enters the realm of political activity. However, certain acts of violence, which exist on the fringes of the legitimate revolution, call into question the ability to protect such activities from extradition and punishment. 

(Steven Lubet, Morris Czackes, The Role of the American Judiciary in the Extradition of Political Terrorists, 71 Journal of Criminal Law and Criminology 193 (1980) 

As for the definition of political crimes, the Federal Supreme Court has embraced the subjective doctrine, understanding that specific malice – a special purpose of action, embodied in the political desideratum – is necessary to perfect the political offence: 

1- As the Constitution does not define a political offence, it is up to the interpreter to do so taking into account the specific case and the law in force. 

2- A political offence only exists when the assumptions of Article 2 of the National Security Law (Law 7,170/82) are met, to which are added those of Article 1: the materiality of the conduct must impair or expose, actually or potentially, the danger of injury to national sovereignty, so that, although the conduct is typified in Article 12 of the LSN, it is necessary to add the political motivation. (STF – RC 1468 second, Rel. Min. Ilmar Galvão, Rel. p/ Judgment Min. Maurício Corrêa, DJ 16.8.2000) 

In another trial, the eminent minister Marco Aurélio pointed out: 

The Brazilian legal system does not recognize a political crime whose conceptual characterization results, exclusively, from the motivation of the author of the criminal conduct. To this end, the criminal act must also actually or potentially threaten national security, a legal-political concept which, by being identified in the values referred to in articles 1 and article 2, II, of Law 7170/83 constitutes the very material object of the criminal protection provided by the State to legal assets relevant to the institutional organization in force in Brazil. (SR 160.841 SP, vote of Min. Marco Aurélio, p. 1573). 

Although the constitutional text does not distinguish between the two categories (crimes against national security and political crimes) they ended up being equivalent in the infraconstitutional field, since the National Security Law absorbed political crimes. 

It is true that this hermeneutic aspect has the incidence of the constitutional prohibition of extradition for political crimes, applicable indiscriminately to foreigners and, of course, to Brazilians naturalized at any time. 

As a result, the STF has signed an understanding that political crimes have been incorporated into the infraconstitutional framework with the status of crimes against national security. 

In this case, assimilation to the types provided for in the National Security Act would lead to the question of the peculiar treatment of political offences, in this case, without the Court’s conditions for political offences with violence, it would lead to the hypothesis prohibited by the Federal Constitution. (Article 5 LII shall not grant extradition of aliens for political offences or offences of opinion

If, at the time of the facts, there was no special Brazilian legislation to combat terrorism and if the execution of extradition were assimilated to political crimes, there would be a constitutional obstacle to extradition, and it is worth recalling the historical, firm and eloquent jurisprudence of the Federal Supreme Court in the protection of those accused of political crimes (HC 33722/DF, Judge Nelson Hungria, trial 28/09/1955: Written record: Political crime. Extradition is not permitted, provided it is not related to the ordinary crime (HC 3372/DF, Rel. Min. Nelson Hungria, First Panel, DJ 

24.11.1955, pp. 15136, Ement. Vol. 00237-02, pp. 00635, Patient: Jacques Charles Noel de Bernonville). 

The second obstacle to extradition, that is to say, its fence in the case of a political offence, is therefore obvious in this case. 

  1. Presentation of the extraditing party to a court or emergency tribunal. Guarantee of due process. 

Finally, a third obstacle to the request for extradition must be examined. The recent Migration Law (Law 13.445/2017) prohibits the granting of extradition when: (Art.82, VIII – the extraditing party has to respond, in the requesting State, before a court or an emergency tribunal;) 

Beyond the simple characterization of a political crime or an emergency tribunal, this Court has already examined thoroughly the scope of the “emergency tribunal” dictum to see a broader scope, which is to ensure a fair trial with due process of law. 

Political instability and even resignations of judges, as well as arrests of opponents to the Government of the requesting state (Edoc 49), can be considered a notorious fact. In such circumstances, there is at least justified doubt as to whether the extraditing party will be effectively subjected to an independent and impartial tribunal, within a framework of institutional normality, safe from exogenous and endogenous instability and pressure. 

The European Parliament resolution of 13 March 2019, approving the 2018 report, condemned the increased scrutiny by the executive and the political pressure on the work of judges and magistrates: 

“(…) 6 Condemns the increasing control by the executive and the political pressure on the work of judges and magistrates; stresses that a thorough reform of the legislative and the judiciary is necessary for Turkey to improve access to the judicial system, to enhance its effectiveness and to provide better protection of the right to be tried within a reasonable time; underlines that these reforms are necessary for Turkey to fulfil its obligations under international human rights law 

It is concerned that the dismissal of more than 4,000 judges and prosecutors constitutes a threat to the independence and impartiality of the judiciary; it also considers that the detention of more than 570 lawyers constitutes an obstacle to the right of defense and a violation of the right to a fair trial; 

It also condemns the arrest and judicial harassment of human rights lawyers; 

Calls on the Working Party on Reform to analyze the judicial reform strategy and make it compliant with the standards required by the EU and the Council of Europe; calls on Turkey to ensure the involvement of all stakeholders, including civil society organizations, throughout the reform process; urges the Commission to monitor the proper use of EU funding for the training of judicial and law enforcement officials, which should not be used to legitimize repressive behavior (European Parliament, Texts Adopted, 13/03/2019, Report 2018 on Turkey). (http://www.europarl.europa.eu/doceo/document/TA- 8-2019-0200_EN.html.) 

I should also mention that the Supreme Court of the United Kingdom recently rejected four extradition requests made by Turkey in relation to its own nationals for alleged terrorist practice. On April 12th of this year, the Supreme Court confirmed a decision by the ordinary courts in the United Kingdom that had refused to extradite Turkish citizen AKIN IPEK, a businessman accused by the Turkish Government of being involved in the Gulen movement. (https://www.supremecourt.uk/decided-cases/index.html) 

And in the face of such instabilities in the political life of the requesting State, the solution presented, in a court for the protection of individual freedoms, is by the refusal of extradition that one cannot consider with certainty the guarantee of a fair trial according to the constitutional concessions. 

In the 1960s, the Supreme Court faced a similar dilemma. In a context of instability typical of post- revolutionary movements, the Cuban Government requested the extradition of one of its nationals and had the request rejected. The Supreme Court understood, in the lapidary vote of Judge Victor Nunes Leal, that “the lack of guarantees, which is presumed in the court of exception, is what justifies this reservation in the general principle of extradition”. Minister Victor Nunes Leal continued: “In the first case, it is the very configuration of the judicial power that makes extradition difficult; in the second, it is the political environment, agitated by the spirit of the revolution, and marked by the unlimited powers of the Government, that can compromise the functioning of the ordinary courts themselves. In one situation or another, the freedom, security or life of the subject of this extradition case is in danger, and it is these superior goods that the law wishes to protect, when it prohibits the surrender of those who will be tried by an emergency tribunal (Ext. 232/CA – Cuba, Plenary Court, unanimous, DJ 17/12/1960, p. 03947, RTJ vol. 26, p, 1) 

Here is the antiquated precedent of this Supreme Court in scoring that the situation is assimilated to the court by the court of exception. Judge Celso de Mello, dean of this Court, in a lapidary vote on Extradition 1362/DF: “It should be recalled, moreover, that the essentiality of international cooperation in the criminal repression of common crimes does not exempt the Brazilian State – and, in particular, the Federal Supreme Court – from ensuring respect for the fundamental rights of the foreign subject who may suffer, in our country, extradition proceedings initiated by any foreign State. The fact that the foreigner has the legal status of extradition is not sufficient to reduce him/her to a state of submission incompatible with the essential dignity inherent in him/her as a human being and which confers on him/her the ownership of inalienable fundamental rights, among which the guarantee of “due process of law” is insurmountable because of its importance. In matters of 

extradition law, the Federal Supreme Court cannot and must not be indifferent to violations of fundamental procedural guarantees. The fact is that the Brazilian State – which owes unrestricted obedience to the very Constitution that governs its institutional life – has assumed, by virtue of that same political status, the very serious duty of always giving pre-eminence to human rights (art. 4, II). The extradited person thus assumes, in the process of extradition, the unavailability of rights, the inviolability of which must be preserved by the State to which the extradition request was addressed. The possibility of depriving, in a criminal court, of the “due process of law”, in the multiple contours in which this principle is developed, guaranteeing the rights and the very freedom of the accused – guarantee of a broad defense, guarantee of an adversarial procedure, equality between the parties before the natural judge and guarantee of impartiality of the investigating judge – prevents the valid granting of the extradition request (RTJ 134/56-58, Rel. Min. CELSO DE MELLO). 

In summary, in the present case, there are substantial grounds for denying the extradition request, either because of the atypicality of the conduct, the facts imputed to the extradition predate the Brazilian law that criminalized terrorism, or because it appears as a political crime in light of the subsumption of the conduct to the national security law, or because the political instability is evident and there is no guarantee of the judiciary’s predicates and of a fair and impartial trial with due process of law. Also because it does not ensure that the extradited person is guaranteed a fair trial by an independent judge. 

For these reasons, I reject the request for extradition. 

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Postponement of Freedom Forum 2020: Grave Human Rights Violations in Turkey

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FOR IMMEDIATE RELEASE

Re: Postponement of Freedom Forum 2020: Grave Human Rights Violations in Turkey

We regret to inform you that we are postponing Freedom Forum 2020: Grave Human Rights Violations in Turkey in Washington, DC on March 24-25.

Given the coronavirus’ rapid spread around the globe, we have been closely monitoring news reports and communicating with health departments and local government outlets. Unfortunately, numerous cities and states have declared states of emergency and the health of our participants is our utmost priority. Following suit with other organizations who have postponed their events scheduled for the near future, including many that would have taken place at the National Press Club, we have decided to postpone the Freedom Forum 2020: Grave Human Rights Violations in Turkey.

A new date for the Freedom Forum will be determined and communicated to you in a timely fashion when local and international monitors declare that the threat of coronavirus has been contained.

We are very sorry to have to postpone this event as it will be a great gathering, but we hope you can understand the circumstances.

Hafza Y. GIRDAP
Spokesperson

 

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RELEASE ABDULLAH AYDOGAN: The 74 Year Old Political Prisoner

AST has written an official complaint letter to be shared with relevant United Nations institutions. Please join us in sending a letter to Nils Melzer in order to urge the Special Rapporteur to take action on Turkey’s cruel treatment of Abdullah Aydogan

Re: International Law Obligations to Release Abdullah Aydoğan

Dear Special Rapporteur Nils Melzer,

We write on behalf of Advocates of Silenced Turkey (AST), an advocacy group of concerned human rights defenders who promote international human rights, the independence and security of human rights defenders, the integrity of legal systems and the rule of law through advocacy, education, and research. AST plays a major role in documenting and disseminating information regarding human rights violations committed in the Republic of Turkey.

The Republic of Turkey, under the combined leadership of the Justice and Development Party (AKP) and President Recep Tayyip Erdogan, has systemically detained, arrested, charged and/or imprisoned victims who suffer from old age and chronic health problems without exploring potential non-custodial measures. The presiding Turkish government’s ill-treatment of critically ill prisoners has been extensively documented by the United Nations’ Independent Experts, domestic NGOs, and international human rights organizations. In fact, there are 458 critically ill prisoners in Turkey’s criminal justice system.

In this instance, we are writing with respect to Abdullah Aydoğan, a 74-year old prisoner. Mr. Aydoğan has been in prison since 2017, continues to suffer a multitude of life-threatening health problems, and all of his appeals, legal and otherwise, have been unequivocally rejected by the Turkish judicial system.

Further Background

Abdullah Aydoğan, a 74-year old illiterate retiree, husband, and father of 1 daughter has been in prison since 2016. In August 2016, Aydoğan was taken into custody and later imprisoned for his alleged managerial role in the Gulen Movement. Until his first encounter with the criminal justice system, Aydoğan had no prior criminal record. After nearly 9 months in custody, Aydoğan was convicted for acquiring a banking account from Asia Bank (“Bank Asya”) in 1997; traveling abroad three times for hajj, umrah, and his daughter’s graduation ceremony; participating in a relief organization which organized charity activities in underserved villages and towns. Aydoğan was initially sentenced to 9 years and 9 months; the Supreme Court later reduced his sentence to 6 years and 3 months, confirming and ascertaining his sentence.

According to the information we have received through AST’s original research, Mr. Aydoğan was unable to leave his home prior to his imprisonment due to health issues. He spent his time exclusively at home for nearly five years and depended on his wife for care. A board of medical examiners unanimously agree that Aydoğan’s health problems pose a dire threat to his health if left untreated. Mr. Aydoğan suffers from bilateral sensorineural hearing loss, movement disability due to gonarthrosis (a degenerative joint issue), senile cataract, and benign prostatic hyperplasia.

Legal Analysis

The UN Human Rights Committee and the UN Special Rapporteur’s Mission to Turkey have both concluded after careful consideration that detentions, arrest, and convictions of critically ill persons may amount to torture and other cruel, inhuman or degrading treatment. The ill-treatment of disabled and sickly prisoners by imprisonment and deprivation of medical services violates fundamental human rights outlined by the International Covenant on Civil and Political Rights (ICCPR) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Finally, the Turkish government’s systemic persecution of disabled prisoners violates Articles 10, 14, and 15 of the Convention on the Rights of Persons with Disabilities. Conviction or detention of vulnerable persons is therefore unlawful.

A close investigation of Abdullah Aydoğan’s case reveals that his particular situation has been covered and protected by four distinct human rights instruments:

  1. International Covenant on Civil and Political Rights

  2. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment

  3. Convention on the Rights of Persons with Disabilities

  4. Basic Principles for the Treatment of Prisoners

While the violations of the first two instruments are self-evident, we would like to explain the violations of the other two instruments.

Convention on the Rights of Persons with Disabilities

The detention and imprisonment of Abdullah Aydoğan constitute a grave violation of the Convention on the Rights of Persons with Disabilities to which Turkey is a state party. Most importantly, Article 15 provides, “(2) States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” The October 2019 report by the UN Committee on the Rights of Persons with Disabilities provides further clarification of the State duty to protect human rights of disabled members of society by delineating shortcomings of Turkish institutions:

  1. The absence of information about measures to protect the rights of persons with disabilities and prevent abuse and involuntary admission to psychiatric hospitals, residential facilities or other institutions;

  2. Insufficient accommodations available for persons with disabilities in prisons, reports of ill-treatment of persons with disabilities in prisons, limited access to remedies in cases of ill-treatment, and risks of reprisals;

  3. The lack of information about monitoring of residential facilities to prevent ill-treatment and the restrictions on monitoring by civil society organizations of persons with disabilities deprived of liberty

Basic Principles for the Treatment of Prisoners

In 1990, the United Nations established a set of principles for the protection of civil rights of prisoners while in custody. Principle 4 establishes the “responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State’s other social objectives and its fundamental responsibilities for promoting the well-being and development of all members of society.” In light of this principle, Abdullah Aydoğan who has been unable to leave his home for nearly five years prior to his imprisonment poses absolutely no danger to the Turkish society at large. Furthermore, charges leveled against Aydoğan pertain exclusively to his involvement with various non-violent charity activities, meaning Aydoğan has never posed a danger to society at any point of his life. In short, Mr. Aydoğan cannot and does not pose a danger to society due to the condition of his health. Therefore, the Turkish State’s responsibility for the protection of society against crime can be effectively discharged in this instance.

Conclusion 

AST urges the Office of the Special Rapporteur to urge the Government of Turkey to:

  1. Immediately and unconditionally release from imprisonment Abdullah Aydoğan

  2. Immediately release from imprisonment all other critically ill men and women who suffer from life threatening illnesses and pose no risk to the social safety

  3. Put an end to the practice of imprisoning old, critically-ill, and disabled prisoners

  4. Put an end to the practice of charging Turkish citizens with criminal offenses based simply on their affiliation with government-sanctioned charity organizations

  5. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments.

Thank you for your prompt attention to this important matter.
Advocates of Silenced Turkey.
Letters can be sent by mail AND email:
Mailing Address:
Special Rapporteur on Torture
c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211 Geneva 10
Switzerland

EMAIL: urgent-action@ohchr.org

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Human Rights Digest: January 2020 Articles

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TURKEY: MONTHLY HUMAN RIGHTS DIGEST January 2020

  1. A Mother’s Plea for Help: The Tumor is Spreading, My Daughter is Sick

On February 27, 2018, Sevgi Sezer, a critically-ill primary school teacher, was imprisoned for 7 years and 6 months due to her affiliation with the Hizmet Movement. After nearly two years, Sezer continues to suffer from a malicious tumor on her back while forcedly sharing an overcrowded prison cell with 16 other women prisoners. Sezer was denied medical attention for a long time despite making many requests while the tumor on her back, a constantly growing vascular malformation, went undiagnosed for 9 months. Sezer’s deprivation of medical assistance led to the painful growth of the tumor, causing her immense suffering and severely limiting her mobility. The appeals court continues to stall action on Sezer’s case as she suffers despite concrete medical evidence that warrants close medical attention and release from imprisonment. Teacher Sezer’s mother made an emotional appeal to authorities: “I could not hug my daughter in my last visit because the tumor spread all over her back. I am calling government officials to take action; my daughter is sick, in pain. She needs treatment.”

  1. 70 Turkish Air Force Academy Cadets Receive Life Sentence for “Courtroom Behavior”

On January 3, 2020, the 24th Istanbul High Criminal Court sentenced 70 Turkish Air Force Academy Students, aged 18-23, to aggravated life imprisonment. The Turkish Court charged all 70 of the cadets with violating the constitution, merging their cases under the overarching July 15 Coup Attempt trials. While the cadets’ involvement in the coup attempt has not been evidenced, the court found the cadets guilty of intent to aid and abet the coup attempt. Moreover, the presiding judge changed his original sentencing to a lifetime sentence and defended his decision by blaming the alleged contrarian behavior of the defendants during court proceedings. While the cadets can appeal the court order, the hysteria revolving around the July 15 failed coup attempt has effectively eliminated all avenues of justice and exoneration.

  1. Philanthropist Melek Ipek, “Angel Mom”, Sentenced for Hizmet Affiliation

On January 9, 2020, the 24th Ankara High Criminal Court sentenced Melek Ipek and her son Cafer Ipek to 12 and 79 years of imprisonment, respectively. The overarching case brought against billionaire Akin Ipek and the Ipek Family Estate found all family members guilty for providing financial support to the charity activities of the Hizmet Movement. Since five family members had escaped Turkey due to the undue political and judicial process, the Ankara court put their cases on hold while charging Melek Ipek with “opposition to tax law”, a bogus charge that, as it now appears, has been included to target the Ipek family’s vast financial estate. The court ordered for the seizure of all financial assets, dividends, and shares of all Ipek family members who hold stock in the Ipek Holding Company.

  1. Another Victim of the Hysteria: Left-Leaning Sports Reporter Fired from Job

On January 8, 2020, Fatma Karaagac, a left-leaning former sports reporter for Haberturk TV, gave an interview regarding her termination. In her remarks, Karaagac complained that she was fired for international political reasons while the company firing her blamed her alleged affiliation with the Hizmet Movement. Karaagac was neither sued or summoned to court. The prosecutorial hysteria directed against the Hizmet Movement continues to ransack the lives of thousands of people. The unquestioned vilification of the Hizmet Movement by the Turkish government allows for opportunists and people with personal vendettas to accuse anyone and any time of Hizmet affiliation to cause serious damage to their lives. Fatma Karaagac is a recent and prime example.

  1. Former Teacher from Adana Sentenced 7.5 Years for Teacher’s Union Membership

On January 8, 2020, the Adana 12th Heavy Criminal Court found Mehmet Onuk guilty and sentenced him for 7 years and 6 months. According to the court order, Mr. Onuk’s alleged crimes consist of using ByLock, a mobile chat application, holding religious study circles in his home, and being a member of a government-sanctioned worker’s union. Mehmet Onuk, like countless others, was charged for these crimes as part of the ongoing persecution campaign against the Hizmet Movement.


 

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Farzona Öğretmen

Henüz 13-14 yaşlarında gönlüne başka diyarlara, ırak memleketlere gitme ateşi düşen ve bunun için şehrinin kabristanında adını ve mezar taşını dahi bilmediği bir adamı vesile ederek ettiği dualar sonrası üç kıtanın üç farklı ülkesinde ömrünü harcamış bir gayret insanı Farzona Hanım…

Başa gelen felaketler karşısında dimdik durup, yapılan tenkitlere karşı, “Herkes yanlış yapsa ben bu Hizmet’ten vazgeçmem. Siz imansızlık nedir bilmezsiniz. Ben bu hizmet sayesinde Allah’ı ve Efendimiz (s.a.v)’i tanıdım,” diye vefasını gösteren Farzona Hanım…

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