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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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International Human Rights Conference on Turkey

It is an international conference for human rights activists, intellectuals and policymakers focused on human rights violations in Turkey.

CONFIRMED SPEAKERS

  • Host Committee Chair, Enes Kanter, NBA Player, human rights activist
  • Abdulhamit Bilici: Former CEO of Zaman Newspaper, USA
  • Alon Ben-Meir: Senior Fellow at New York University’s Center for Global Affairs and Senior Fellow at the World Policy Institute, USA
  • Alp Aslandogan: Executive Director of Alliance for Shared Values, USA
  • Arbana Xharra: Albanian Journalist Recipient of the International Women of Courage Award from the US State Department, USA
  • Arzu Yildiz: Journalist, Recipient of Media Ethics Award and The Bravest Woman Award, Canada
  • Bulent Ceyhan: Freelance Journalist, Recipient of Metin Goktepe Journalism Award, Sweden
  • David Phillips: Director / Program on Peace-building and Rights at Columbia University, USA
  • Ekrem Dumanli: Former CEO of Zaman Newspaper, USA
  • Hakan Yesilova: Editor of The Fountain Magazine, USA
  • Hayko Bagdat: Journalist, Germany
  • Ian Jauslin: The Committee of Concerned Scientists, USA
  • Ibrahim Kurt: Professor of Education and Culture / Broken Chalk Organization, Netherlands
  • Jim Harrington: Founder of Texas Civil Rights Project and Human Rights Attorney, USA
  • Katrina Lantos Swett: President of Lantos Foundation for Human Rights, USA
  • Kerim Balci: London Advocacy, Research Fellow & Communications Officer, Journalist
  • Kisten Govender: Elected Member of South African Legal Practice Council, South Africa
  • Michael Rubin: Resident Scholar, AEI, USA
  • Mesut Kacmaz: Former Director of Public Relations at PakTurk Schools, Pakistan
  • Rabia Chaudry: Attorney, Advocate, NYT Bestselling Author, USA
  • Sebastian Ennis: Arvay Finlay, Lawyers’ Rights Watch, Canada
  • Sophia Pandya: Chair, Department of Religious Studies / California State University at Long Beach, USA
  • Talip Aydin: Ph.D. Penn State Law, Former Judge and Head of Human Rights Department, Academic, Activist, USA
  • Vonya Womack: Director of the Center for Global Learning at Cabrini University, USA

PANEL SESSIONS

  • FREEDOM OF SPEECH AND EXPRESSION

In the aftermath of the failed coup, the government closed down 179 media outlets – including 53 newspapers, 37 radio stations, 34 TV channels, 29 publishing houses, 20 magazines, and six news agencies – with accused links to the Gulen movement, Kurdish opposition, or Leftists groups. Consequently, a total of 2,308 media workers and journalists have lost their jobs. The government canceled hundreds of press accreditations and revoked passports of an unknown number of journalists and their family members to ban them from traveling abroad. In addition, the government imprisoned a record-breaking number of journalists in the wake of the coup attempt – with that, Turkey became the world’s largest prison for journalists. The Platform for Independent Journalism (P24) reported that at least 126 journalists and media workers were in prison in Turkey as of October 2019 – among them, many were put in long solitary confinement.

The absence of freedom of expression is not only a recurring problem for journalists but for citizens as well. In 2018, the Ministry of Interior reported that more than 7,000 individuals were detained for their social media posts after investigating 631,233 digital materials. In relation to the censorships and content restrictions in the country, Wikipedia has been blocked in Turkey since April of 2017. Currently, out of the 180 countries, Turkey ranks 157th on the Press Freedom Index of Reporters Without Borders and is listed among ‘not free’ countries by the Freedom House.

  • COLLAPSE OF RULE OF LAW

With approximately 4,200 judges and prosecutors (including two judges from Turkey’s highest court) dismissed permanently, over one-fifth of Turkey’s judiciary has been removed. Of those dismissed, at least 2,200 were jailed with their assets frozen. Consequently, the climate of fear paralyzed the judges and prosecutors who still have their positions. The fear combined with the heavy government influence in the court system led to the collapse of the judiciary system and the deterioration of human rights in the country. As a result, Turkey ranked 109 out of 126 countries in 2019 on the rule of law index of the World Justice Project.

  • SHIFT FROM DEMOCRATIZATION TOWARDS AUTHORITARIANISM IN TURKEY: THE RISE OF POLITICAL ISLAM AND DISTANCING FROM THE WEST

There is an emerging widespread consensus among scholars and journalists over the nature of the political regime in Turkey. One chief assumption rests at the center of countless diverse studies — Turkey is no longer a democracy and there is little space for free speech. Whether Turkey could be identified as a dictatorship still remains a matter of an ensuing academic controversy. The scholarly position oscillates between divergent viewpoints from “smart authoritarianism” to emerging fascism. The debate is not just about semantics or the epistemological dimension, it is about the essence and soul of the living system in Turkey.

  • POWER, POLITICAL VIOLENCE, AND VIOLATIONS OF MINORITY RIGHTS

The so-called coup attempt was a watershed moment in Turkey’s modern history. The government immediately declared a state of emergency and ruled the country with decrees, which had the full force of law, for two years. Although the emergency regime officially ended last summer, the measures taken by the government during the emergency rule remain in place after authorities enacted a new set of laws that made decrees permanent. The abortive coup provided President Erdogan and his party the much-needed pretext and unlimited latitude to embark on a massive purge to dismiss their real and perceived political opponents from public service. As one of the most obvious targets of government Kurdish people have been exposed to harsh violations. As indicated in the first OHCHR report,103 Decree 674 of 1 September 2016 permitted the Central Government to appoint “trustees” in lieu of elected mayors, deputy mayors or members of municipal councils suspended on charges of terrorism.104 Since September 2016, 87 out of 105 mayors were imprisoned, including 35 women and 52 men. All are of Kurdish origin. Within the security operations taking place in areas home to, in large part, to Kurdish residents and targeted citizens of Kurdish origin of all ages for their perceived affiliation to the PKK, individuals have been killed, women have been sexually assaulted, and many acts of torture have been committed. Over 100,000 websites were reportedly blocked in 2017, including a high number of pro-Kurdish websites and satellite TVs.

  • WOMEN’S RIGHTS AND PRISONERS OF CONSCIENCE: WOMEN & CHILDREN

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’s 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.

More information about this event; www.thefreedomforum.org

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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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TAKE ACTION ; INTERNATIONAL ART CONTEST

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Subject: Human Rights Violations in Turkey.

  • Certificates for the best 10 artists.
  • The best 10 artworks will be displayed at the prestigious National Press Club in Washington, DC.

1ST PLACE $1.000
2ND PLACE $500
3RD PLACE $250

All varieties of art will be acceptable submissions
Dimensions: At least 11 x 17 inch Send your artwork to art@silencedturkey.org

 

 

 

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A NEW TRUE STORY ABOUT THE SUCCESS OF A BUSINESSMAN IN U.S WHO WAS PURGED IN TURKEY BY THE REGIME “DOSTLARINIZ KADAR GÜÇLÜSÜNÜZ” IN TURKISH BY M.BEY

Bu hikayede bir iş adamının kendi ifadesiyle bir ‘Zalim’ tarafından herşeyinin elinden alınmasına rağmen sıfırdan zirveye tırmanışı ve ilham verici başarı hikayesinin yanı sıra inancın ve dostluğun önemi anlatılmaktadır.
Hikaye sahibi Advocates of Silenced Turkey ile yazılı olarak hikayesini paylaşmış, ve kişinin güvenliği açısından yerler ve isimler deşifre edilmemektedir.
Sizde başarı hikayenizi help@silencedturkey.org la paylaşabilirsiniz.

BU BAŞARI HİKAYESİNİ BURADAN OKUYABİLİRSİNİZ…

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World Justice Project Rule of Law Index 2017–2018

World Justice Project Rule of Law Index 2018–2019

January 2019 / (200 Pages)

The World Justice Project (WJP) Rule of Law Index® 2019 is the latest report in an annual series measuring the rule of law based on the experiences and perceptions of the general public and in-country experts worldwide.
Turkey is in the 109th position out of 126 countries in the World Justice Project’s 2018-19 Rule of Law Index. There has been widespread concern that fundamental rights and freedoms and the rule of law in Turkey have eroded since the state of emergency was announced in July 2016. Turkey was ranked in the bottom tercile in six of these eight areas. The two areas in which it achieved an average grade were the absence of corruption and criminal justice. Turkey’s record on fundamental rights, too, was near the bottom of the list, in 122nd position, one below China and one above Myanmar. Freedom of religion and freedom of expression achieved particularly dismal results in this category. Read More

 

 

 

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Human Rights Violations in Turkey December, 2019

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TURKEY: MONTHLY HUMAN RIGHTS DIGEST

A TEACHER’S FINAL WORDS: THEY ARE KILLING PEOPLE

On December 20, 2019, Engin Erol (41) passed away from cancer after three years of inhumane imprisonment in Artvin and Erzurum prisons. Erol, a teacher, husband, and father of three, began experiencing severe health problems within three months of imprisonment and requested proper medical care from the Turkish courts. The prosecutor on the case ignored more than 20 appeals from Erol, delaying his diagnosis for months, and denying him access to medicine as his condition rapidly progressed to its end-stage. He was kept in Erzurum, one of the coldest cities in Turkey, during winter months while “the new warden turned the heat off” for months despite the below-freezing temperature. Erol pleaded for help in his final words: “They are killing people in there. There are two people suffering from my condition. Pray for them.”¹

MOTHER & 7-YEAR OLD CHILD WITH DOWN SYNDROME SENTENCED FOR HIZMET MOVEMENT AFFILIATION

Nuran Dilber and her daughter Nalan (7) have been sent to a İstanbul prison over their alleged links to the Hizmet Movement. Nalan, a child with down syndrome, requires special medical and educational attention. Prior to her arrest, Nalan had just begun to learn how to read and write, bathroom etiquette, and social interaction. Left with no one else to take care of her, Nalan continues to be imprisoned along with her mother.
Nalan continues to be imprisoned along with her mother. Their story came to fore thanks to HDP Parliamentarian Omer Faruk Gergerlioglu, who voiced his opposition to the arbitrary arrests and emphasized the gravity of the trauma that Nalan has been through. Gergerlioglu criticized the detention of the Dilber family with strong words: “Where is your conscience?” ²

A BABY IN PRISON: MUAZ’S FIRST BIRTHDAY

On December 7th, 2018, only 60 days after giving birth to her baby, Nurhan Erdal Bahadir (38) was arrested as part of Turkey’s routine imprisonment of all dissidents and put in Tarsus Women’s Prison. Bahadir’s baby, Muaz, suffers from a genetic heart condition and a vision problem that caused permanent damage to the alignment of his eyes. The young mother’s request for a pair of glasses as well as an instant pot for her child’s health was denied for months while Muaz received neither medical care nor supplemental baby food during the first year of his life. Forced to sleep in a ward with 15 other women, Bahadir was only given a bunk bed to sleep with Muaz. When Muaz fell off the bed, the mother’s plea for help was met with a recommendation from prison guards to “tie the baby’s foot to the bed.” During her postpartum period, Mrs. Bahadir and Baby Muaz faced harsh winter conditions without proper heating and rationed food portions, compounding the cruelty of the prison conditions. In December 2019, Muaz celebrated his first birthday behind bars.³

MEMBERS OF FLORYA CHAMBER OF COMMERCE SENTENCED: 26 BUSINESSMEN BEHIND BARS

On December 27, 2019, the Istanbul 23rd High Criminal Court tried 26 business people for their official membership to Florya Chamber of Commerce, a local organization in Istanbul. The court sentenced nine defendants to 7 years and six months, and 14 defendants to 6 years and three months of prison time for “their affiliation with the Hizmet Movement. While the court refused to provide an explanation for their reasoning, the defendants’ appeals made no difference in the court’s sentencing decision⁵.

ANOTHER VICTIM OF THE HYSTERIA: CHP MAYOR IN PRISON FOR FORMER ROLE

On December 12th, 2019, Ibrahim Burak Oguz, a member of the main opposition party in Turkey, was found guilty for his alleged association with the Hizmet Movement because of his former role on the executive board of the Izmir Young Entrepreneurs Association (IGID). Oguz’s arrest came only six months after his electoral victory on March 21st, where he beat the leading party’s candidate and became the Mayor of Urla. While no specific charges have been leveled against Oguz, he has been sent to prison in Izmir for his alleged links⁴.

References:

1- https://magduriyetler2.blogspot.com/2019/12/kanserden-olen-tutukluerolun-son.html
2- https://magduriyetler2.blogspot.com/2019/12/tutsak-bebek-muaznannesinden-mektup.html
3- https://turkeypurge.com/mother-7-year-old-daughter-with-downsyndrome-sent-to-prison-on-terror-charges-report
4- https://www.cnnturk.com/turkiye/chpli-belediye-baskani-fetouyeliginden-tutuklandi
5- aa.com.tr/tr/turkiye/fetonun-is-dunyasi-yapilanmasi-davasindakarar/1685891#


 

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TAKE ACTION ; MART AYINDA MAĞDUR KADINLAR İÇİN SEN DE BİRŞEY YAP !!!

  1. PDF LINK
8 Mart, “Dünya Kadınlar Günü”; Mart ayı ise Amerika’da “Women History Month” bir ay boyunca programların yapıldığı bir ay.

 

1. PROTESTOLAR: – Önemli, merkezi yerlerde yürüyüş yapılıp basın açıklaması okunabilir. – Günün anlam ve önemini belirten Flyer dağıtılması
2. PANELLER: – Üniversite, Kültür merkezi veya dini mekanlarda 1 kadın mağdur ve 1 uzman konuşmalı paneller – Zoom linki olmalı – Mağdur konuşmacı noktasında desteğe ihtiyaç olabilir. İhtiyaç olursa başka bölgelere konuşmacı hususunda yardımcı olmaya çalışacağız.
3. MEKTUP & İMZA KAMPANYASI: – TR’de kadın hakkı ihlallerine ilişkin NH Senatoru Shaheen’e hitaben bir mektup hazırlanacak. Mektup için tüm U.S’ten imza toplanacak. – İMZA: Change kampanyası başlatılacak ve yapılan programlarda hard copy imza da olacak. – Örneğin: Kalabalık yerlerde veya market önlerinde kadın mağduriyetlerine ilişkin bir banner ile imza toplanabilir.
4. VİDEO & RESİM: – Dünyanın farklı yerlerinden önemli kişilerden Türkiye’deki kadın mağduriyetleriyle ilişkin görüntülü video mesajlar istenebilir.
5. RESİM SERGİSİ: – Dikkat çekecek merkezi, kalabalık yerlerde ve mekanlarda kadın mağduriyetine ilişkin bir sergi organize edilebilir.
6. YEREL AKTİVİTELERE KATILMA: – Mümkünse her yerde arkadaşların küçük gruplar halinde bile olsa Woman’s March ve benzeri aktivitelere katılması teşvik edilebilir. – Bu programlarda dikkat çekmesi bakımından t-shirt kullanılabilir. VEYA bu 6 faaliyetin dışında daha faydalı bir calışma ile yaşanılan kadın mağduriyetlerini dile GETİRİP bizimle çalışmalarınızı paylaşabilirsiniz.
NOT : AST tarafından, basın açıklaması, flyer, poster tasarımları, resim, imza kampanyasıyla ilgili içerikler hazırlanıp temin edilecektir, ihtiyaçlara cevap vermeye imkan ölçüsünde uğraşacağız.

 

 

 

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