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PRESS RELEASE Re:Refugees-and-Latest-Pushbacks-in-Greece

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Introduction

“No one puts their children in a boat unless the boat is safer than the land.” (Warshan Shire, Home)

Thousands of refugees fleeing their homeland due to violence, terror, or political prosecution use Greece as an entry gate to Europe. Since the beginning of 2014, over 1.1 million refugees have crossed the borders of Greece(3). Most of the refugees have chosen to go by sea in order to land on one of the Greek islands in the Aegean Sea, but recently a growing number of refugees have begun to use Evros as a passage from Turkey to Greece. In recent years, besides refugees who are using Turkey as a transitway to Greece, Turkish citizens who were forced to flee Turkey due to a massive witch-hunt have also used the same route. This witch-hunt was launched by the Justice and Development Party (AKP) government against the sympathizers of the Gulen Movement following a failed coup attempt on July 15, 2016. Many of these citizens attempted to escape Turkey using illegal methods as the Turkish government canceled their passports.

So far, the asylum-seeking Turkish citizens who cross the Evros to escape from a tyrannical regime in Turkey are embraced humanely by the Greek authorities. However, there have been recent reports of several push-back cases, in which groups of Turkish asylum-seekers were beaten by masked men and forced back to Turkey.

Human Rights Abuses in Turkey After July 15, 2016

Following the coup attempt on July 15, 2016, the Turkish government declared a state of emergency and began to target any individual opposing the government, the Gulen Movement in particular. The Gulen Movement is also known as the “Hizmet Movement,” “hizmet” meaning service in Turkish. It is a faith-based group of people engaging in different voluntary activities such as education, business, and health, and has been the primary target of the government. Alleged supporters of the movement in Turkey are faced with arrest, imprisonment, torture, inhumane and degrading treatment, denial of fair treatment, labeling, confiscation, and passport seizure.

According to a report released by the United States Department of State on human rights practices in Turkey in 2018 (2), between July 2016 and July 2018, Turkish Ministry of Justice reported that “investigations” were opened into 612,347 persons, the majority of whom were affiliated with the Gulen movement. Authorities prosecuted 1,519 lawyers and dismissed 7,257 academics and more than 4,000 judges and prosecutors. After the coup, the government operated prisons became filled with people who were detained and awaiting trial and began to operate over capacity. 28 individuals disappeared, some kidnapped in broad daylight in front of their families. Reports of torture, mistreatment, and abuse skyrocketed from tens in 2017 to more than 2,500 in 2018. 51 people lost their lives under suspicious circumstances in official custody.

In addition to opening investigations into persons associated with the movement, the government has made many attempts to limit its citizen’s physical freedom and freedom of speech. 155,000 individuals whose family members were allegedly connected to the Gulen movement were banned from traveling, and the government has investigated over 45,000 social media accounts and blocked more than 50,000 websites. Furthermore, during the first six months of 2018, Twitter received 8,988 court orders and requests from authorities to remove content.

Refugees and Latest Push-backs in Greece

Due to its geographical location, Greece has been the forefront of the influx of migrants and asylum seekers fleeing their home country due to wars, political instability, and economic crises. In the last couple of years, a significant number of Turkish citizens have also begun to cross the border between Turkey and Greece and sought asylum due to the Turkish government’s targeting of dissidents belonging to different ideologies, particularly the Gulen Movement.

Immigrants fleeing from Turkey to Greece either cross the Aegean Sea or the land border between Turkey and Greece that is almost entirely formed by the Evros river. The land border between Turkey and Greece is one of the easternmost frontiers of the European Union. Up until a fence went up on all but 12 kilometers of the Evros in 2012, it was the easiest and safest path for asylum seekers from the Middle East and elsewhere to reach Europe. According to the Greece country report released in March 2019 by the European Council on Refugees and Exiles (3), “18,014 persons arrived in Greece through the Greek-Turkish land border of Evros in 2018, compared to 6,592 in 2017.” The same report detailed “a substantial increase of applications submitted from Turkish nationals” in 2018; 4,834 applications in 2018, compared to 1,826 in 2017 and 189 in 2016.

In addition to its own economic problems, Greece has long been dealing with an immigration crisis which has had further economic and social impacts on the country. Faced with a flood of refugees from Greece’s land border with Turkey over the past several years, according to DW News (9), Greek guards are overwhelmed with the task of protecting the borders from refugees and the refugees from violent push-backs. According to a report released by Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), “foreign nationals were returned from Greece to Turkey by boat across the Evros River; some of the persons met alleged that they had been ill-treated (including baton blows to the head) by police and border guard officers or (para-) military commandos during such operations.”(10) According to a news article in The Guardian (11), several unidentified masked men participated in abusing the refugees and forced them back to the Turkish border in freezing temperatures at night without any clothing.

Although there were numerous reports of push-backs made by an unidentified group of people towards immigrants in the past (4), the immigrants who were mainly Turkish citizens never reported any mistreatment on the Greek side of the border until recently. In the last couple of months, there have been several reports that Turkish asylum seekers who entered Greece through the Evros river were beaten by masked men and pushed back into Turkey.

According to ipa.news (5) and Bold (13), while trying to seek asylum in Greece, the Gul family were pushed back into Turkey by masked and armed men dressed in camouflage. Halil Gul, Seher Gul, and their three children entered Greece but were denied entry on Monday. Halil and Seher Gul were taken into custody by the gendarme in the Turkish border city of Edirne. Relatives of the family were called to pick the children up. Zubeyir Koculu, a journalist in Athens, reported the latest update regarding the issue as follows: “A total number of 32 Turkish political asylum seekers were pushed back to Turkey through Evros in the last four days after they arrived in Greece. 17 of them were arrested in Turkey, 11 of them managed to cross the border again and are being kept in custody.”

As reported by keeptalkinggreece.com, ipa.news (12), and Bold (13), a group of 15 people fleeing persecution in Turkey were pushed back to Turkey after crossing the Greek border by masked men using brute force. A family of 4 were arrested by the Turkish police and the remaining 11 people, after a second attempt to enter Greece soil, were detained by Greek police at around 2 P.M. on Saturday near the border and taken into custody according to the Greek Council for Refugees (GCR), a nongovernmental organization defending human rights and fighting against illegal pushbacks in the region. In his e-mail to UN representatives, Muhammed Ihsan Erdogan, a Turkish political asylum seeker who currently resides in Athens, says that on May 4th, 2019, around 5:30, three Turkish political asylum seekers, one of whom was his sister, crossed the Evros river in order to come to Greece and were very close to Orestiada. He was asking for help because his sister and two others were afraid of being pushed back into Turkey. His sister also sent a similar message to UN representatives stating that they were afraid of inhumane treatment and being pushed back into Turkey, which would put their lives in danger. However, after these two messages, these three people were pushed back into Turkey and Mr. Erdogan’s sister, Ayse Reyhane Erdogan, was put behind bars in a Turkish prison for two years.

According to a Twitter message from Tihomir Sabchev, in an article that appeared in the Greek magazine Lifo, “people testified in front of lawyers in Thessaloniki” that they were beaten by the police, their possessions were thrown away in the river, they were pushed back. Then they identified one of the policemen in front of UN representatives.”(14)

According to a news article at Euronews.com (15), scores of Turkish asylum seekers were pushed back, sometimes violently. It is said in the news that witnesses claimed that various groups, some uniformed, used physical force against those who resisted. Since April 23, 2019, up to the date the news was published, May 13, 2019, 82 people from Turkey, including children, who crossed the Turkish border for seeking political asylum were sent back to Turkey. Around half of those who returned were arrested by Turkish officials on charges that they were involved in the 2016 military coup.

The pushbacks raised concerns among human rights activists and those who are sensitive to such matters. Ten Greek refugee NGOs urged for the immediate investigation of reports of collective expulsions in the Evros region (8). In addition, Rebecca Harms, a member of the EU Parliament, stated that this situation violates international law. According to Euronews.com (15), The European Commission urged Greece to follow up on the allegations of pushbacks.

Many Turkish asylum-seekers in Greece say they feel safe in Greece (7) and have been treated well. However, the latest reports of push-back incidents raise serious concerns among advocates of human rights.

Evaluation in terms of International Human Rights Law

Push-back news creates an alarming situation in terms of international human rights law and refugee law. These Turkish families from the Hizmet Movement feel that they have no other option but to flee from Erdogan’s dictatorship in any way they could find. It must be highlighted that people are risking their lives to reach Greece with hopes of a new, safe, and free life. These people satisfy the conditions to be considered as refugees in Article 1 of the 1951 Refugee Convention which defines it as “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (16). If they are to stay in Turkey, it is highly likely that they will face one or more of the Turkish government’s persecution methods such as arbitrary and long pretrial detentions, inhuman prison conditions, abductions, unfair trials and convictions, passport cancellations.

International human rights law protects these families. Greece is a party to many human rights treaties and conventions as part of the European Union and the United Nations, thus has an obligation to protect these people when they reached Greece soils. More specifically, both under the EU and UN legislation, Greece cannot return, deport or expel these refugee families knowing that they will suffer from the Turkish government’s persecutions.

Likewise, Alfred De Zayas, Former UN Independent Expert on the Promotion of a Democratic and Equitable International Order and Professor of International Law at Geneva School of Diplomacy, asserts that

“In the spirit of article 14 of the Universal Declaration of Human Rights, the United Nations adopted in 1951 the Convention Relative to the Status of Refugees. The Convention and its 1967 Protocol lay down the framework for the protection of persons who have a well-founded fear of persecution and hence have an international law right to apply for asylum.  Article 33 of the Refugee Convention elaborates upon the rule of non-refoulement, which prohibits states from deporting, expelling or extraditing asylum seekers to any state where they would be exposed to persecution based on their race, religion, nationality, membership of a particular social group or political opinion. The rule of non-refoulement has also been enacted in other core international human rights treaties such as Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and article 7 of the UN International Covenant on Civil and Political Rights, both of which have been ratified by Greece. The Committee against Torture’s General Comment No. 1 further elucidates the rule and establishes pertinent criteria for its practical application.

Looking at the current situation in Greece, it must be emphasized that Greece is obliged to comply with its commitments under international human rights law and refugee law. Members of the Hizmet Movement fleeing from the Turkish government’s harsh persecutions fulfill the definition of a refugee under the 1951 Refugee Convention and have every right to demand protection from deportation to Turkey, where they face persecution. Recent push-backs of asylum seekers from the Hizmet Movement who have been denied the opportunity to have their asylum applications considered in Greece and who have been forcefully returned to Turkey by masked men is extraordinarily worrisome and contravenes international human rights law and refugee law. Hitherto Greece had welcomed the refugees from Turkey.  Greece must stop all push backs, comply with its obligations under international law, and also investigate all reports of push backs and determine responsibilities.  The Greek Government should avail itself of advisory services and technical assistance, which both the United Nations High Commissioner for Refugees and the High Commissioner for Human Rights can provide.”

Moreover, Professor Anwar Alam, Senior Fellow at Middle Institute with Policy Perspectives Foundation in New Delhi, also states that.

“In this context, it must be brought to attention that fleeing Hizmet or non-Hizmet people from Turkey to Greece via Evros River or the Aegean Sea enjoy a legal right of protection after crossing into Greece border. EU Asylum Procedures Directive (Directive 2013/32/EU) states that the first country of asylum is a country where the person has already received international protection – a refugee-like protection, or another kind of “sufficient protection” which must at least include non-refoulement guarantees (Article 35 of the Directive).

Therefore, Greek authorities are urged to comply with this legal injunction and investigate the issue of masked men who are pushing back the refugees to Turkey.”

Conclusion

Migrant pushback is a growing concern, especially in the Greek-Turkish land border. Push-backs, as the word conveys the message, is stopping migrants in the borders and pushing them back by force to the country where they came from. The legal term is collective expulsion (17). According to Article 4 of Protocol 4 (Art 4-4) to the European Convention on Human Rights, push- back is defined in legal terms as “The well-established definition of collective expulsion is any measure of the competent authorities compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.”(18)

Migration is not easy for those who migrate as well as those countries who receive them. People will continue to leave their countries in search of a more secure and dignified future if they face life-threatening conditions, political imprisonment, and torture. Considering the political landscape in the Middle East and Turkey, we do not see credible evidence that the influx of migrants to Greece will stop in the near future. Therefore, Greek authorities should review their border security procedures and give serious consideration to maintaining the safety of asylum seekers to remain in compliance with international laws and regulations. The Greek authorities should investigate the pushback and violence allegations whether those allegations are against border security guards or non-governmental violent groups.

References

  1. Kotsiou, O. S., Kotsios, P., Srivastava, D. S., Kotsios, V., Gourgoulianis, K. I., & Exadaktylos, A. K. (2018). Impact of the Refugee Crisis on the Greek Healthcare System: A Long Road to Ithaca. International journal of environmental research and public health, 15(8), 1790. doi:10.3390/ijerph15081790
  2. United States Department of State (2018). Turkey 2018 Human Rights Report. https://www.state.gov/documents/organization/289435.pdf
  3. Konstantinou, A.& Georgopoulou, A.(2019). Asylum Information Database, Country Report: Greece. European Council on Refugees and Exiles.
  4. Reidy, E.(2018). An open secret: Refugee pushbacks across the Turkey- Greece border. https://www.thenewhumanitarian.org/special-report/ 2018/10/08/refugee-pushbacks-across-turkey-greece-border-Evros.
  5. IpaNews (2019). Another group of Turkish asylum seekers who arrived in Greece pushed-back to Turkey. https://ipa.news/2019/04/29/another- group-of-turkish-asylum-seekers-who-arrived- in-greece-pushed- back-to-turkey/.
  6. Keep Talking Greece (2019). https://www.keeptalkinggreece.com/2019/ 04/30/turkish-asylum-seekers-evros/?utm_source=feedburner& utm_medium=twitter&utm_campaign=Feed  253A+KeepTalkingGreece+ 2528Keep+Talking+Greece 2529
  7. NPR (2017). https://www.npr.org/sections/parallels/2017/12/27/ 571842458/turks-fleeing-to-greece-find-mostly-warm-welcome- despite-history
  8. EFSYN (2019). https://www.efsyn.gr/node/193572
  9. DWNews (2018). Inside Europe: Greece accused of migrant pushbacks https://www.dw.com/en/inside-europe-greece-accused-of-migrant- pushbacks/av-46044142
  10. CEO-CPT (2018). https://www.coe.int/en/web/cpt/-/greece- council-of-europe-anti-torture-committee-calls-for-the-situation-of-psychiatric-patients-to-be-improved-while- criticising-once-again-the-poor-t
  11. Guardian (2018). https://www.theguardian.com/world/2018/dec/18/ greek-police-accused-beating-migrants-trying-to-enter-from- turkey
  12. Ipa News (2019). https://ipa.news/2019/04/28/we-were-beaten-and- pushed-back-by-masked-men-at-turkish-greek-border-turkish- journalist-and-asylum-seeker/
  13. Bold (2019). https://medyabold.com/2019/04/29/iki-ayri-turkiyeli- multeci-grubu-yunanistandan-geri-itildi/
  14. Lifo (2019). https://m.lifo.gr/articles/greece_articles/ 236781/apokleistiki-sygklonistiki-martyria-apo-to-teleytaio- push-back-ston-evro?fbclid=IwAR2PuufQWcjmHNp2tCyzsvfeN-X4rxJYjezsseBQsRZbq9ITHuknTANG28g
  15. EuroNews (2019). https://www.euronews.com/2019/05/11/masked-men- beat-us-with-batons-greece-accused-of-violent-asylum-seeker-pushbacks
  16. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 1 June 2019].
  17. Macgregor, M. (2018). InfoMigrants. https://www.infomigrants.net/en/ post/11579/greek-authorities-accused-of-illegal-pushbacks-and- violence-against-migrants
  18. Council of Europe (2019). Guide on Article 4 of Protocol No. 4 to the European Convention on Human Rights. https://www.echr.coe.int/ Documents/Library_Collection_P4postP11_ETS046E_ENG.pdf

 

 

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PRESS RELEASE Re: Call on Turkish Government to end the violations of right to travel and cancellations of passports

 

PDF LINK of STATEMENT

Turkish Justice Minister on January 18, 2019, declared that more than 500,000 people have been investigated and arrested on terror and coup linked charges. Turkey deliberately violates domestic legislation and international agreements. Specially, the freedom to travel has been protected by many international documents including Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Article 10 of the Convention on Rights of Child, Article 8 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 4th Protocol of the European Convention on Human Rights (ECHR). Article 23 of the Constitution of the Republic of Turkey provides that; “Everyone has the right to freedom of residence and travel…Freedom of travel may be restricted by law for the purpose of investigation and prosecution of an offense, and prevention of offenses. A citizen’s freedom to leave the country may be restricted only by the decision of a judge based on a criminal investigation or prosecution. Citizens shall not be deported, or deprived of their right of entry into the homeland.”

The passport application of Dr. Haluk Asuman SAVAS, who wants to be treated abroad for his cancer which relapsed twice, has been denied with the accusation of being dismissed from his job and his passport was canceled with a statutory decree although he has been acquitted for the allegation of being member of a terrorist organization and although the court, where he was being prosecuted, canceled his travel ban. Upon the public criticism, on 5/15/2019, the Adana Governorship stated “The mentioned person’s legal situation, health condition, application and documents, the authority, which has been used for several people in crucial and rare cases, has been reported to be evaluated by the Internal Affairs Ministry with the document number 17480 and date of 5/14/2019 and will be processed upon the response of the ministry. On 5/16/2019, in the additional press statement it was declared “Upon the evaluations on the mentioned person, a passport will be assigned by using the 22nd article of the 5682 numbered passport law which is used in crucial conditions” and made it clear that he would be able to benefit from this legal right and the passport cancellation process should be denied.

Prof Savas was given his passport within an exceptional authority used for a limited and exclusive number of people. However, it is known that there are hundreds of thousands of people whose passports are canceled with the statutory decree of a state of emergency and people whose right to travel is denied. According to the notification with the date 8/5/2019 of the Internal Affairs Ministry “The paraphrases on the passports of 155,350 people, which are determined to be paraphrased for the investigations on the owners’ spouses even though there is no juridical or executive process by the General Administration of Registration and Citizenship and the Police Department, has been cancelled on 7/25/2019.” Besides, in the notification with the date 3/1/2019, it is stated that “Upon the investigation and search made by our ministry, the restricted passports of 155,350 people which were blocked previously have been activated and in addition to this, the passports of 57,191 other people have been activated as well. Thus, so far, in total, passports of 212,541 people have been activated by canceling the executive limitations on them by our ministry.”

In consideration of the evaluations above, AST is calling the Turkish Government to end the aforesaid violations caused by the executive limitations which are clearly illegal.

In order for the state not to have more responsibilities by the international agreements and not to face sanctions;

 

  • Implementation of executive limitation, which is against the international agreements and the constitution, should be ended.

 

  • Within the responsibilities brought by the international agreements, necessary regulations should be implemented and tracked effectively immediately for the civil servants.     

 Hafza Y. GIRDAP

Spokesperson

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PRESS RELEASE: Urge Turkish Government to investigate the serious torture allegations to ex-diplomats in the capital Ankara, Turkey

Advocates of Silenced Turkey (AST) is deeply concerned about the torture allegations documented by the Ankara Bar Association. 6 ex-diplomats of Turkish Foreign Ministry have been detained at Police Headquarters in Ankara.  HDP MP Omer F. Gergerlioglu; Erinc Sagkan, President of Ankara Bar Association, and CHP MP Sezgin Tanrikulu spoke out about the allegations immediately.

According to Ankara Bar Association’s report, 5 detainees were harshly beaten, knocked unconscious and  sexually abused  (anally raped with batons). The detained diplomats were forced to sign a statement of confession. A tortured diplomat lost his consciousness due to severe beatings and was hospitalized. However,  he was refused to be given a medical report.

We strongly urge the Turkish government to investigate these serious allegations and bring the perpetrators of the horrible torture incidents to justice.

As AST,  we also urge the United Nations, Venice Commission, State Department, Council of Europe and all international organizations to call Turkish Government to investigate all kinds of torture allegations and stop torture.

Full Report Link

https://twitter.com/ankarabarosu/status/1133375623727058944?s=19

News

https://www.euronews.com/2019/05/28/turkish-lawyers-group-says-foreign-ministry-staff-tortured-in-custody

https://ahvalnews-com.cdn.ampproject.org/c/s/ahvalnews.com/tr/node/48797?amp

https://www.bbc.com/turkce/amp/haberler-turkiye-48433324?__twitter_impression=true

https://ipa.news/2019/05/28/former-diplomats-sexually-abused-with-batons-and-tortured-bar-association/

Contacts to deliver your message

COMMISSION ON SECURITY AND COOPERATION IN EUROPE, U.S. HELSINKI COMMISSION 

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7.UNITED NATIONS HUMAN RIGHTS COUNCIL

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E-mail: civilsociety@ohchr.org 

12. U.S. DEPARTMENT OF STATE

Address: 2201 C St NW, Washington, DC 20520

Phone Number: (202) 647-4000

Twitter: @StateDept

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AMNESTY INTERNATIONAL 

Twitter: @amnestyusa | Facebook: https://www.facebook.com/amnestyusa 

If you believe your human rights have been violated and you need referrals for assistance or want to share your story, contact our research team report@aiusa.org 

@amnesty

@aforgutu

UN HUMAN RIGHTS

U.N. High Commissioner for Human Rights
Office of the United Nations High
Commissioner for Human Rights
Palais des Nations
CH- 121 I Geneva 10. Switzerland
Email: InfoDesk@ohchr.org

REP. CHRIS SMITH -NJ (LANTOS COMMISSION)

Washington, DC Office

2373 Rayburn House Office Building

Washington, D.C. 20515

phone (202) 225-3765

fax      (202) 225-7768

https://chrissmith.house.gov/contact/

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Washington, D.C.

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Tel: (202) 225-1313

Fax: (202) 225-1171

https://alceehastings.house.gov/contact

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AST Statement in Turkish: To cancel passports to silence dissidents is against international law. Free to leave is a right and must be respected by Turkish Authorities and President Erdogan

PDF LINK

ÇIKIŞ YOK!

YARGI KARARI OLMAKSIZIN PASAPORT İPTALİ (İDARİ TAHDİT) YOLUYLA YURT DIŞINA ÇIKIŞIN ENGELLENMESİ OLAY İNCELEMESİ :

Prof. Dr. Haluk Asuman SAVAŞ OLAY: İki kez tekrarlamış kanser hastası olup yurt dışında kanser tedavisi olmak isteyen KHK’lı Prof. Dr. Haluk Asuman SAVAŞ’ın pasaport başvurusu, terör örgütü üyeliğinden yargılandığı mahkemenin beraat kararına ve yurt dışı yasağının kaldırılmış olmasına rağmen, OHAL KHK’sı ile kamudan ihraç olduğu ve pasaportu KHK ile iptal edildiği için reddedildi1 . Kamuoyunda oluşan tepkiler üzerine, Adana Valiliği’nce 15.05.2019 tarihinde yapılan basın açıklamasında2 , “Söz konusu şahsın hukuki durumu, rahatsızlığı, alınan belgeler ve talebi; son 20 yılda zaruri hallerde istisnai bir durum olarak sadece birkaç kişi için kullanılan yetki kapsamında değerlendirilmek üzere İçişleri Bakanlığına 14.05.2019 tarih ve 14780 sayılı yazı gönderilmiş olup, Bakanlığımızın yapacağı değerlendirmeye göre işlem tesis edilecektir.”; 16.05.2019 tarihinde yapılan ek basın açıklamasında3 , “Yapılan değerlendirme sonucunda adı geçen şahıslara 5682 Sayılı Pasaport Kanunun 22. maddesi gereğince zaruri haller kapsamında pasaport düzenlenecektir.” ifadeleri ile pasaport red işlemi kabul edilerek, istisnai bir durum olarak ve kişiye özel çözüm üretileceği belirtilmiştir. OHAL KHK’sı ile pasaportları iptal edilen yüzbinlerce kişinin olduğu bilinmektedir. İçişleri Bakanlığı’nın 05.08.2018 tarihli duyrusuna4 göre, “…Nüfus ve Vatandaşlık İşleri Genel Müdürlüğü ve Emniyet Genel Müdürlüğü, kendisi hakkında bir adli veya idari işlem olmadığı halde, eşleri hakkında yürütülen işlemlerden dolayı şerh konulduğu tespit edilen 155.350 kişinin pasaportlarındaki șerhler 25.07.2018 tarihinde kaldırmıştır.”. Yine, İçişleri Bakanlığı’nın 01.03.2019 tarihli duyurusunda5 , “Bakanlığımız tarafından yapılan inceleme ve araştırma neticesinde; daha önce pasaportuna idari tahdit uygulanan 155 bin 350 kișinin pasaportu geçerli hale getirilirken, buna ilaveten 57 bin 191 kișinin de pasaportundaki idari tahdit kaldırıldı.

Böylece, Bakanlığımızca bugüne kadar toplam 212 bin 541 kișinin pasaportundaki “idari tahdit” kaldırılarak, pasaportları geçerli hale getirildi.” denmektedir. İHLALLERE İLİŞKİN TEMEL METİNLER : Hakkında adli bir karar olmaksızın bireylerin pasaportlarının iptal edilmesi ve iade edilmemesinin tarafı olduğumuz uluslararası anlaşmalar, Anayasa ve evrensel hukuk ilkelerini ihlal ederek bireylerin temel hakların (yaşam hakkı, seyahat özgürlüğü vd.) kısıtlanmasına yol açtığı ve “işkence” tanımlaması kapsamına girdiği görülmektedir. T.C. Anayasası’nın 90. maddesi uyarınca uluslararası anlaşmalar üst normdur6 .  Birleşmiş Milletler İnsan Hakları Evrensel Beyannamesi’nin7 3. maddesine göre: “Yaşamak, özgürlük ve kişi güvenliği herkesin hakkıdır.”. Beyanname’nin 5. maddesine göre: “Hiç kimseye işkence yapılamaz, zalimce, insanlık dışı veya onur kırıcı davranışlarda bulunulamaz ve ceza verilemez.”. Beyanname’nin 13. maddesine göre: “Herkesin bir devletin toprakları üzerinde serbestçe dolaşma ve oturma hakkı vardır. Herkes, kendi ülkesi de dahil olmak üzere, herhangi bir ülkeden ayrılmak ve ülkesine yeniden dönmek hakkına sahiptir.”. Beyanname’nin 2. maddesine göre ise: “Herkes, ırk, renk, cinsiyet, dil, din, siyasal veya başka bir görüş, ulusal veya sosyal köken, mülkiyet, doğuş veya herhangi başka bir ayrım gözetmeksizin bu Bildirge ile ilan olunan bütün haklardan ve bütün özgürlüklerden yararlanabilir.”.  Medeni ve Siyasi Haklara İlişkin Uluslararası Sözleşme’nin8 6. maddesine göre: “Her insan doğuştan yaşama hakkına sahiptir. Bu hak hukuk tarafından korunur. Hiç kimse yaşama hakkından keyfi olarak yoksun bırakılamaz.”. Sözleşme’nin 7. maddesine göre: “Hiç kimse işkenceye veya zalimane, insanlıkdışı veya onur kırıcı muamele veya cezaya maruz bırakılamaz.”. Sözleşme’nin 12. maddesine göre: “Bir Devletin¸ ülkesinde hukuka uygun olarak bulunan bir kimse, o ülke sınırları içinde seyahat etme özgürlüğüne ve yerleşeceği yeri seçme hakkına sahiptir. Herkes kendi ülkesi de dahil, bir ülkeden ayrılmakta serbesttir. Yukarıda belirtilen haklar, bu Sözleşmede tanınan diğer haklara uygun olarak ulusal güvenlik, kamu düzeni (ordre public), genel sağlık veya genel ahlak veya başkalarının hak ve özgürlüklerini korumak için gerekli sebepler ile hukuken öngörülmüş sınırlamalar dışında hiç bir sınırlamaya tabi tutulamaz. Hiç kimse, kendi ülkesine girme hakkından keyfi olarak yoksun bırakılamaz.”. Sözleşme’nin 26. maddesinde ise: “Herkes, hukuk önünde eşittir ve hiç bir ayrımcılığa tabi tutulmaksızın hukuk tarafından eşit olarak korunma hakkına sahiptir. Hukuk bu alanda her türlü ayrımcılığı yasaklar ve herkese ırk, renk, cinsiyet, dil, din, siyasal veya başka bir fikir ulusal veya toplumsal köken, mülkiyet, doğum veya başka bir statü ile yapılan ayrımcılığa karşı etkili ve eşit koruma sağlar.”. denmektedir.  İşkence ve Diğer Zalimane, Gayri İnsani veya Küçültücü Muamale veya Cezaya Karşı Sözleşme’nin9 1. maddesine göre: “ Sözleşme amaçlarına göre, “İşkence” terimi, bir şahsa veya bir üçüncü şahsa, bu şahsın veya üçüncü şahsın işlediği veya işlediğinden şüphe edilen bir fiil sebebiyle, cezalandırmak amacıyla bilgi veya itiraf elde etmek için veya ayrım gözeten herhangi bir sebep dolayısıyla bir kamu görevlisinin veya bu sıfatla hareket eden bir başka şahsın teşviki veya rızası veya muvafakatıyla uygulanan fiziki veya manevi ağır acı veya ızdırap veren bir fiil anlamına gelir. Bu yalnızca yasal müeyyidelerin uygulanmasından doğan, tabiatında olan veya arızi olarak husule gelen acı ve ızdırabı içermez.”.  Avrupa İnsan Hakları Sözleşmesi’nin10 1. maddesine göre: “ Yüksek Sözleşmeci Taraflar kendi yetki alanları içinde bulunan herkese bu Sözleşme’nin birinci bölümünde açıklanan hak ve özgürlükleri tanırlar.” Sözleşme’nin 2. maddesine göre: “Herkesin yaşam hakkı yasayla korunur. Yasanın ölüm cezası ile cezalandırdığı bir suçtan dolayı hakkında mahkemece hükmedilen bu cezanın infaz edilmesi dışında, hiç kimsenin yaşamına kasten son verilemez.”. Sözleşme’nin 3. maddesine göre: “Hiç kimse işkenceye veya insanlık dışı ya da aşağılayıcı muamele veya cezaya tabi tutulamaz.”. 5. maddeye göre: “Herkes özgürlük ve güvenlik hakkına sahiptir.”. Sözleşme’nin 14. maddesinde ise: “Bu Sözleşme’de tanınan hak ve özgürlüklerden yararlanma, cinsiyet, ırk, renk, dil, din, siyasal veya diğer kanaatler, ulusal veya toplumsal köken, ulusal bir azınlığa aidiyet, servet, doğum başta olmak üzere herhangi başka bir duruma dayalı hiçbir ayrımcılık gözetilmeksizin sağlanmalıdır.” denmektedir. T.C. Anayasası’nın 17. maddesine göre: “Herkes, yaşama, maddî ve manevî varlığını koruma ve geliştirme hakkına sahiptir. Tıbbî zorunluluklar ve kanunda yazılı haller dışında, kişinin vücut bütünlüğüne dokunulamaz; rızası olmadan bilimsel ve tıbbî deneylere tâbi tutulamaz. Kimseye işkence ve eziyet yapılamaz; kimse insan haysiyetiyle bağdaşmayan bir cezaya veya muameleye tâbi tutulamaz.”. Anayasanın 23. maddesine göre: “Herkes, yerleşme ve seyahat hürriyetine sahiptir. Yerleşme hürriyeti, suç işlenmesini önlemek, sosyal ve ekonomik gelişmeyi sağlamak, sağlıklı ve düzenli kentleşmeyi gerçekleştirmek ve kamu mallarını korumak; Seyahat hürriyeti, suç soruşturma ve kovuşturması sebebiyle ve suç işlenmesini önlemek; Amaçlarıyla kanunla sınırlanabilir. (Değişik: 3/10/2001-4709/8 md.; 12/9/2010-5982/3 md.) Vatandaşın yurt dışına çıkma hürriyeti, ancak suç soruşturması veya kovuşturması sebebiyle hâkim kararına bağlı olarak sınırlanabilir.”. Anayasanın 10. maddesine göre: “Herkes, dil, ırk, renk, cinsiyet, siyasî düşünce, felsefî inanç, din, mezhep ve benzeri sebeplerle ayırım gözetilmeksizin kanun önünde eşittir. … Devlet organları ve idare makamları bütün işlemlerinde kanun önünde eşitlik ilkesine uygun olarak hareket etmek zorundadırlar.”. Anayasanın 13. maddesine göre: “Temel hak ve hürriyetler, özlerine dokunulmaksızın yalnızca Anayasanın ilgili maddelerinde belirtilen sebeplere bağlı olarak ve ancak kanunla sınırlanabilir. Bu sınırlamalar, Anayasanın sözüne ve ruhuna, demokratik toplum düzeninin ve lâik Cumhuriyetin gereklerine ve ölçülülük ilkesine aykırı olamaz.”. Anayasanın 2017 yılında değişiklik yapılmış 15. maddesine göre de: “(Değişik: 16/4/2017-6771/16 md.) Savaş, seferberlik veya olağanüstü hallerde, milletlerarası hukuktan doğan yükümlülükler ihlâl edilmemek kaydıyla, durumun gerektirdiği ölçüde temel hak ve hürriyetlerin kullanılması kısmen veya tamamen durdurulabilir veya bunlar için Anayasada öngörülen güvencelere aykırı tedbirler alınabilir. (Değişik: 7/5/2004-5170/2 md.) Birinci fıkrada belirlenen durumlarda da, savaş hukukuna uygun fiiller sonucu meydana gelen ölümler dışında, kişinin yaşama hakkına, maddî ve manevî varlığının bütünlüğüne dokunulamaz; kimse din, vicdan, düşünce ve kanaatlerini açıklamaya zorlanamaz ve bunlardan dolayı suçlanamaz; suç ve cezalar geçmişe yürütülemez; suçluluğu mahkeme kararı ile saptanıncaya kadar kimse suçlu sayılamaz.”. Bu hak ihlallerinin Türk Ceza Kanunu kapsamında karşılıklarına ilişkin değerlendirme bu çalışma kapsamı dışında tutulmuş olduğundan idari tahdit eyleminin oluşturduğu suçlar incelenmemiştir.

TESPİT VE ÖNERİLER: Yukarıda kısaca değinildiği üzere, idari tahdit usulü gerek ulusal gerekse uluslararası düzenlemeler karşısında açık hak ihlali oluşturmakta ve devlet olarak üstlenilen yükümlülüklerin de ihlaline sebebiyet vermektedir. Kabul edilen anlaşmalara bağlı uluslararası yükümlülüklere aykırı davranışın ise hem devlet, hem de hukuka aykırı eylemleri gerçekleştiren kişiler açısından sorumluluk doğuracağı kuşkusuzdur. AST, yukarıdaki tespitler ışığında hukuka aykırılığı açık olan idari tahdit uygulamasından kaynaklı hak ihlallerine derhal son verilerek mağduriyetlerin artmaması için Türk hükümetine çağrı yapmakta ve aşağıdaki önerilerde bulunmaktadır: 1. Açıkça hukuka aykırı olan idari tahdit uygulaması sebebiyle bireylerin mağduriyetine sebep olan kamu görevlilerinin bu sorumluluklarının daha fazla artmaması için, Anayasa 90. maddesi karşısında “kanuna aykırı emir” olan ve uygulayıcılar açısından iç hukuktaki muhtelif hükümleri ihlal ederek suç teşkil eden idari tahdit uygulamasının icrasında yer alınmamalı, bireylerin haklarını kullanabilmeleri için gerekli işlemler gecikmeksizin yapılmalı ve durum derhal yazılı olarak amirlere bildirilmelidir. 2. Uluslararası anlaşmalar karşısında devlet olarak sorumluluğun daha fazla artmaması ve yaptırımlara maruz kalınmasının önlenmesi için,  Uluslararası anlaşmalara ve Anayasa hükümlerine aykırı olan idari tahdit uygulamasına derhal son verilmelidir.  Uluslararası anlaşma hükümleri kapsamında yer alan yükümlülükler çerçevesinde, gerekli yasal düzenlemeler yapıldıktan sonra, kamu görevlilerince etkin şekilde uygulanmasının takibi yapılmalıdır.

1 Prof. Dr. Haluk Asuman SAVAŞ’a ait @drhaluksavas hesabından 13.05.2019 tarihinde atılan twitlerde belirtilmiştir.

2 http://www.adana.gov.tr/basin-aciklamasi1505

3 http://www.adana.gov.tr/prof-dr-haluk-asuman-savas-konulu-ek-basin-aciklamasi

4 https://www.icisleri.gov.tr/pasaport-serhlerinin-kaldirilmasina-iliskin-duyuru

5 https://www.icisleri.gov.tr/bakanligimizca-57-bin-191-kisinin-pasaportundaki-idari-tahdit-kaldirildi

6 https://www.tbmm.gov.tr/anayasa/anayasa_2018.pdf

7 https://www.tbmm.gov.tr/komisyon/insanhaklari/pdf01/203-208.pdf

8 https://www.tbmm.gov.tr/komisyon/insanhaklari/pdf01/Medeni_Siyasi_Haklari_Ul_Soz.pdf

9 https://www.tbmm.gov.tr/komisyon/insanhaklari/pdf01/37-51.pdf

10 www.silencedturkey.org – help@silencedturkey.org – 1-540-209-1934 – @silencedturkeyhttps://www.tbmm.gov.tr/komisyon/insanhaklari/pdf01/ IH_ve_Temel_Ozgurluklerin_Korunmasi.pdf

 

 

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Collapse of Rule of Law in TURKEY and Politically Motivated Extradition Requests for the Dissidents of Erdogan Regime

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Turkey Blocks Defendants’ Right to Legal Counsel During Trials No Fair Trial in Turkey As Judiciary Remains in Shambles

Table of Contents

  • Introduction
  • Political Context
  • Political Nature of Regime

A)General Outline of Debate

B)Contours of Authoritarianism

  • The Case Against Extradition
  • a)The post-coup trials are political in nature;
  • b)There is no judicial independence;
  • c)Mass prosecution of Lawyers
  • d)Turkey’s Abuse of Interpol
  • e)British Court Rejects Turkey’s Extradition Request
  • f)Perils of Extradition
  • Conclusion

Introduction

There are numerous reports illuminating the collapse of rule of law and the judicial independence in Turkey. The lack of fair trials, the denial of the right to defense, and political interference in ongoing cases summoned close-up scrutiny from international organizations to the nature of post-coup trials, causing debilitating damage to the credibility of trials at all. Despite for all the coverage of post-coup affairs in Turkey, how trials proceed on bogus and trumped-up charges, how the Turkish political and judicial authorities fabricated evidence to implicate certain figures and how arbitrariness contagiously pervaded all layers of judicial mechanism remain mostly under-sketched until the recent report by the Human Rights Watch (HRW). The HRW report aside, previous studies mostly left certain aspects regarding trials beyond full grasp of outsiders. For this reason, except experts and legal observers, the outside world remains uninformed about how things veered off the script and how the very word of law has become a dead letter following the purge and politically-tinged trials. This report, in addition to the HRW-like studies, seeks to fill the gap by offering a detailed analysis of the political efforts aimed at subverting the legal system and manipulating post-coup trials. Additionally, this study tries to provide a panoramic view of central contours of the political course of post-coup Turkey in an effort to illustrate the correspondence between the government’s not-so-subtle interference in legal processes and dynamics of advancing political interests of the ruling party.

To have a proper sense of what this report is about, a historical perspective is essential to capture how the Turkish government defied both national and international law. This requires revisiting recent course of political events that sealed the country’s tilt toward authoritarianism. In this regard, an adequate understanding of the political context would be a good start to untangle the link between political factors and judicial affairs.

Political Context

Turkey’s slow-motion drift into the grip of authoritarianism took place in much a longer time, a process that began before the failed 2016 coup. The government’s heavy-handed response to nationwide Gezi Park protests in 2013 and the first waves of purge after the corruption investigation in December 2013 paved the way for the emergence of an illiberal government. Then-Prime Minister Recep Tayyip Erdogan did his best in his capacity to blunt the sprawling graft scandal, which implicated his cabinet ministers and his family members. The prime minister responded with a swift purge of prosecutors and police officers overseeing the graft case. Many observers and experts pinpoint this year, 2013, as the major turning point for Turkey’s drift away from a liberal democracy, which it never gained in a full-fledged, ideal fashion in the republican history. It would be safe to say that the contours of autocratic turn began to appear with the purge in judiciary and police department in late 2013. What followed after was a steady descent into an autocratic system.

If the post-2013 era signaled the harbinger of Turkey’s break with the democratic norms, the post-coup period after the botched putsch in mid-2016 served as a testament to the full breakdown of the rule of law, judicial independence and corrosion of the integrity of Turkey’s bureaucratic institutions following the sweeping purge. The failed 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. The profusion of numbers is mind-numbing. More than 150,000 public workers have been fired without due process.

A detailed report by Amnesty International in October last year meticulously documented how that process played out. Authorities did not feel any compunction over the lack of any legal basis or evidence of wrongdoing to justify dismissals.

“Their dismissals did not include specific evidence or details of their alleged wrongdoing. Instead, the decrees offered a generalized justification that they ‘…had links to, were part of, were connected to, or in communication with…’ proscribed groups,” the Amnesty report stated.

Administrative decisions, not court rulings, were definitive and determining elements in the course of dismissals, a minister admitted during the emergency rule. Former Justice Minister Bekir Bozdag’s off-script remarks were an acknowledgment of the political nature of the purge process, which took place in line with political whims of the government rather than due legal process.

As the subject matter of this report, the collapse of judicial independence and lack of fair trials appear as the major source of lamentation and complaints from purge victims. More than 3,500 judges and prosecutors have been dismissed en masse. The majority of them wound up in jail after lengthy pretrial detention. What further blighted Turkey’s shredded judicial landscape was a systematic blow to defendants’ right to fair defense and legal counsel. A recent HRW report, which was published this April, lucidly elaborated on the crackdown on lawyers, among other things. The political persecution of the members of Turkey’s judiciary was (is) not restricted to mass imprisonment of judges and prosecutors. The Turkish authorities also went after lawyers and legal organizations, denying defendants, who had been arrested as part of the post-coup crackdown, not only the fair trial but also access to the most basic legal counsel and defense. It would be professional suicide for any lawyer to represent someone, who stand trial on the charge of affiliation with the Gulen Movement. As the HRW report dwells upon the legal perils and professional challenges of defending a Gulen-affiliated person, lawyers face the high risk of similar treatment and accusations by the authorities.

While the HRW’s scrupulous and well-documented study limits its focus to the ordeal of lawyers, this report aims to take a larger look from a broader perspective to situate the breakdown of Turkey’s judicial system in a historical and political context. To that aim, how the entire legal drama was deeply tainted and steered by political meddling and considerations in Turkey’s post-coup political landscape will be the major theme of this study. In this respect, apart from providing a mere analysis or a narrative record of the recent course of events in Turkey from an analytical angle, this report also contains some normative judgments and policy prescriptions for outside experts, especially in the legal profession, in the face of Turkey’s relentless legal diplomacy to haunt dissidents abroad.

It would be tempting for the host countries to treat Ankara’s extradition requests of some critics within the narrow scope of technical aspects of legal criteria. But it need not much prudence to see the political motivations of Ankara lurking behind the mere judicial moves. This report casts Turkey’s tireless efforts to capture the government’s opponents abroad in this light, offering a close-up look at some cases that expose political machinations inherent in some extradition requests. Therefore, this study warns foreign governments and courts against Ankara’s disregard of central tenets of its own national law and international law when it pursued certain critical figures living in different countries either in Europe or elsewhere.

The Nature of Political Regime in Turkey

  • The General Outline of the Debate

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.

“IN TURKEY under President Recep Tayyip Erdogan, the tweet has been turned into a crime, and a troubled democracy is being turned into a dictatorship. Gradually but inexorably, a nation that once aspired to be an exemplar of enlightened moderation is being transformed by Mr. Erdogan into a dreary totalitarian prison,” The Washington Post wrote in an editorial last year.

The Post editorial reached its conclusion after a long take on how Erdogan’s government rolled back democratic gains of the recent decades. Certainly, the Post is not alone in its assessment.

The Turkish president’s gradual power grab did not happen within one year. It rather took place stage by stage in a piecemeal fashion over the past several years. His political machinations chipped away at core elements of Turkey’s fragile democracy.

Not long before its descent into authoritarianism, Turkey aspired to be a model country for the rest of the region. A mixed combination of Islam and democracy, a rising economy with groundbreaking, novel E.U. reforms as part of the negotiations with Brussels for full membership were the hallmarks of Turkey’s inspiring success story.

“… Turkey is viewed as having played the “most constructive” role in the past year’s events and its prime minister, Recep Tayyip Erdogan, emerged as the most admired leader by far in the region, according to the 2011 edition of the annual “Arab Public Opinion Survey” conducted by Shibley Telhami of the Brookings Institution,” Jim Lobe wrote for Institute for Policy Studies in 2011.

“Turkey is the biggest winner of the Arab Spring,” wrote Telhami who led the survey in 2011 to measure the public reaction and expectations across the region swept by a wave of demonstrations toppling long-running autocrats. The scholar noted further:

“In the five countries polled, Turkey is seen to have played the “most constructive” role in the Arab events. Its prime minister, Recep Erdoğan, is the most admired among world leaders, and those who envision a new president for Egypt want the new president to look most like Erdoğan. Egyptians want their country to look more like Turkey than any of the other Muslim, Arab and other choices provided.”

During the first decade of its spell in power, the Islamist-rooted AKP’s displayed commitment to democracy and its reform-driven agenda to acquire E.U. membership for Turkey upended the long-held belief that political Islam and democracy would not co-exist peacefully in a properly functioning fashion. Until an illiberal and undemocratic turn in the early 2010s, President Erdogan’s rule proved otherwise, boosting confidence in the belief that conservative and Islamist-oriented parties would reconcile their worldview with the demands and necessities of democratic politics.

But as scholars increasingly came to believe that the Arab Spring was a lost opportunity for the Erdogan administration’s loyalty to democracy. Lured by the emerging geopolitical opportunities during the Arab Spring in the Middle East, Turkey sought to project its power across the region. Ankara employed elements of hard power at the expense of its hard-won soft power, chipping away at the prestige it earned after arduous efforts, and making Turkey susceptible and open to the spillover of the regional conflicts. The Syrian civil war and Turkey’s policies have been the most known contours of this embroilment and over-stretch of Ankara’s diplomatic as well as military clout, mostly to the detriment of the country’s interests.

While the Syrian conflict dragged Turkey into uncharted territory with profound diplomatic and military ramifications for Ankara’s regional foreign and security policies, the Turkish domestic politics would not escape unscathed and unaffected from the conflict. The refugee flow, the challenging incorporation of more than 3,5 million Syrians into Turkey’s social fabric, and the emergence of security threats after open border policy created additional pitfalls for the government in Ankara. The social and economic cost of accommodating Syrians also became a politically divisive issue.

  1. B. Contours of Authoritarianism

These course of events in the internal and external realm appears to have inexorably anchored Turkey in an illiberal political setting. The scale and pace of Turkey’s drift into the grip of full-blown authoritarianism after the failed coup in 2016 is completely a different story. The post-2016 Turkey resembles a different country as it underwent a seismic change in all facets and layers of the body politic.

After praising Turkey’s democratic reforms during the 2000s, Peter S. Goodman, London-based European economics correspondent for The New York Times, detected a similar collapse over the course of past years. He wrote for The Times last year:

“But that was before Mr. Erdogan began amassing supreme powers, and before his brutal crackdown on dissent following an attempted coup two years ago. It was before Turkey descended into a financial crisis delivered in no small measure by his authoritarian proclivities and unorthodox stewardship of the economy. Whatever was left of the notion that Mr. Erdogan was a liberalizing force has been wholly extinguished.”

“For the West,” he added, “Mr. Erdogan has devolved from a righteous hope — would-be proof that Islam and democracy can peacefully coexist — into another autocrat whose populism, bombast and contempt for the ledger books have yielded calamity.”

The failed coup ushered in a new era and prompted a new form of commentary that increasingly began to use the concept of dictatorship and dictator when they analyzed the transformation of both the political landscape and President Erdogan himself.  

David L. Phillips, Director of the Program on Peace-building and Rights, Columbia University’s Institute for the Study of Human Rights, likened Erdogan to Stalin. “Erdogan’s “inner Stalin” is unleashed,” he wrote five days after the coup.

Turkey’s authorities launched a massive purge within the public sector and security bureaucracy, with little regard for the purge’s calamitous and pernicious implications for the integrity and functional health of the institutions. The Columbia scholar, who also served at the State Department in the past administrations of Clinton, Bush and Obama, argued that Erdogan was turning Turkey into a giant Gulag.

The failed coup against Erdogan, Bloomberg columnist Noah Feldman wrote, “turned out be a godsend, because it allowed him to end the separation of powers.”

Feldman opined that “the only institutions capable of counterbalancing Erdogan were the military and the courts.”

“The failed coup gave Erdogan the opening to purge the judiciary and military of opponents and skeptics, indeed anyone who wasn’t a reliable loyalist. That left no one to balance Erdogan — and no reason for him to stick with democratic rule,” he wrote in a column in May 2017.

The post-coup purge and crackdown have left no doubt about the political trajectory of the government. The declaration of emergency rule, which was extended seven more times after expiration of its three-month period, allowed the Turkish government to bypass and circumvent constitutional safeguards protecting individual rights and defendants’ rights to a fair trial, legal counsel and etc. The story of the post-coup clampdown was well documented by countless reports by international organizations, therefore there would only be a passing mention here.

As scholars are divided over how to identify the character of the regime in Ankara, there is no doubt about its authoritarian nature.

“Erdoğan’s relentless political chicanery offers a roadmap to today’s populist dictators on how to engineer apparently democratic triumphs on their way to disabling democracy,” the Forbes columnist Melik Kaylan wrote in an article for Politico after a controversial referendum in April 2017. The vote was marred by widespread allegations of voter fraud after the Supreme Election Council (YSK), under political pressure, decided to accept more than 1.5 million unstamped ballot papers at last minute. The ruling swayed the vote in favor of ‘Yes’ camp of President Erdogan whose lifelong push for an executive presidential system materialized with the controversial win the constitutional referendum.

He summarized the authoritarian playbook of the Turkish strongman as follows:

“Erdoğan deliberately provoked chaos then offered himself up as a solution. He allowed ISIS to operate openly in Turkey; he ignited a civil war against the Kurdish population to punish them for voting against him in a crucial national election; he kept the Syrian border porous so the instability there would migrate into Turkey. He persecuted the military until they revolted, accusing outside forces of fomenting the trouble, most recently the Gülenists. With rolling Robespierre-like prosecutions, he warned half the country that opposing him will wreck their lives. He destroyed the economy but subsidized his supporters.”

His analysis reveals the government’s consistent attempts to hollow out Turkey’s once-functioning institutions in a brazen manner. Whatever has the government done since the Gezi protests served to consolidate Erdogan’s position by making the entire political system dependent on one personality with little regard for the institutional degeneration engendered by the whole course of political events.

“The only way Erdoğan has achieved any political success is by using the body politic against itself,” Kaylan wrote. “In essence,” the columnist argued, the Turkish president “has delegitimized governance in order to present himself as the only way to restore it.”

The post-referendum commentary was almost united in their assessment of what the April vote in 2017 meant for the future of Turkey’s political system. The constitutional amendment bestowed enormous powers at the president’s office, undoing the central tenets of the almost century-old parliamentary system of the Republic.

Writing a day after the referendum, Roy Gutman from The Daily Beast contended that “the result will be a system under which there’s no prime minister, where the parliament will be weakened to the point of being a rubber stamp, and the judiciary will become still more subservient than it is already.”

He went on to say: “The path to one-man rule—opponents talk of a “dictatorship”—is the story of a politician with a gut instinct for gaining power who’s seized on every political setback that’s come his way in the past two years and turned it into an opportunity to advance his ambitions.”

Following the presidential election in 2018, the president assumed vast powers normally accrued to a new breed of global strongmen around the world.

A New York Times article summarized the changes introduced as follows:

“The prime minister’s office has been abolished; The military has been brought under firmer civilian control; The president will draft the budget and choose judges and many top officials; The president can dismiss Parliament and call new elections at will; The president appoints the head of the National Intelligence Agency, the Religious Affairs Directorate and the Central Bank, as well as ambassadors, governors and university rectors, among other top bureaucrats; Virtually none of the president’s appointments require a confirmation process.”

One year since the election has confirmed the existence of the one-man rule in Turkey. President Erdogan’s style of governance, however, backfired on March 31 local elections. He lost major cities, including Ankara and Istanbul, as of this report’s publication.

But in between, the president began to dismantle some core institutions of the Republic, while establishing a direct rule over the entire apparatus of the executive branch. Once unthinkable and inconceivable, outside observers and experts no longer shy away from depicting Erdogan’s Turkey as an emerging dictatorship. However contested the academic label it may be, the country moves between authoritarianism and dictatorship with more and more articles calling the Turkish leader as a “dictator.”

In this context and against this backdrop, Turkey’s legal and diplomatic actions on a global scale must be understood and reviewed. Needless to say, the political nature of the regime has direct implications for the ongoing trials in Turkey. Trials against actual coup plotters aside, the majority of the trials against opponents in the post-coup era are politically motivated. Even the coup plotters lack fair trial amid tremendous political pressure and public mobbing.

The Case Against Extradition

There is a preponderance of factual data and evidence that strongly prove the central charge against the Turkish government that the post-coup trials are not fair and politically motivated in form and essence. After providing a historical and political context about the evolution of an increasingly authoritarian regime in Turkey, this part of the report will take the issue of post-coup trials and analyze them from the angle of universally accepted legal norms and criteria. It also will try to build up a compelling case to show why foreign courts and judges should think twice before ruling in favor Ankara’s extradition requests for wanted dissidents.

To begin with, a growing body of pieces appeared on the international media and reports by respected rights organizations have coalesced around a shared conviction about the nature of the post-coup trials: they are not fair. They are driven by political motivations of the government and lack the basic parameters of due process.

  • The post-coup trials are political in nature;
  • There is no judicial independence;
  • Turkey’s authorities show contempt for the ECHR rulings;
  • Mass prosecution of Lawyers
  • Turkey’s abuse of Interpol System;
  • British Court Rejects Ankara’s Extradition Request
  • Perils of Extradition

The second part of the study will elaborate on each theme outlined above in its quest to build up a case against extradition.

Post-Coup Trials Are Politically Motivated

Foreign judges and courts must consider the fact that the major consensus among human rights organizations and Turkey observers is that the majority of the trials appear to be politically motivated. There are a number of cases that indisputably show how Turkey’s authorities simply elbowed aside the central tenets of rule of law and fair trial when they imprisoned rights activists, journalists, politicians and all types of dissidents.

“The Ministry of Justice also reported that, between July 2016 and July 2018, “investigations have been opened into 612,347 persons alleged to be founders, executives, or members of armed organizations.” A majority of these were reportedly detained for alleged ties to the Gulen movement or the PKK, often with little due process or access to the evidence underlying the accusations against them,” the U.S. State Department noted in its report about human rights in Turkey.

The Case of Amnesty International Activists: On July 5, 2017, the Turkish police detained 10 members of Amnesty International over terrorism charges and landed them in pretrial detention. The police raid took place when the activists were attending a cyber-security workshop on an island in the Marmara Sea.  Taner Kilic, the chairman of Amnesty’s Turkey branch, had already been detained in Izmir on similar charges, over membership to a terrorist organization.

The arrest rattled the entire world and was regarded as an assault on human rights itself. The London-based Amnesty International dismissed the charges as politically motivated.

“The use of criminal proceedings against human-rights defenders… is unfortunately an increasingly frequent phenomenon” in Turkey, said Nils Muiznieks, the Council of Europe’s Commissioner for Human Rights, according to Economist.

The Amnesty launched a worldwide campaign to secure the release of Kilic and Idil Eser, the director of Amnesty International’s Turkey branch, and others. While other members were released after months of detention, Kilic remained in prison until August 2018. This episode is only one element of a larger picture that points to the fact that different segments of society and public workers, including diplomats, journalists, judges, prosecutors, teachers, police chiefs and generals faced similar criminal legal proceedings although the majority of them had no record of any wrongdoing and official misconduct.

The deployment of terrorist label and invocation of counter-terrorism laws against members of public service and journalists indeed reveal the political approach deeply rooted in how the government perceives the post-coup trials. The only thing that unites the so many diverse people with different social affiliation and political conviction is that they are opponents or discontents of the Erdogan government. If a public worker is deemed a non-loyalist, this factor is seen enough to categorize him as a terrorist, as tens of thousands of cases before and after the coup have so far confirmed.

The Case of Politician Selahattin Demirtas: The trial of Selahattin Demirtas, the former co-chair of pro-Kurdish People’s Democracy Party (HDP), is another case in point. Prosecutors accuse him of leading the political branch of the outlawed Kurdistan Workers’ Party (PKK) and involving in terrorist propaganda.

Demirtas who was detained in late October 2016, appeared at the court on Feb. 14, 2018, for the first time. The HDP politician noted that “terrorism charges against him were politically motivated and he did not think he would get a fair trial.”

In his defense at the court, Demirtas lamented the obstacles he faced during the lengthy pretrial detention.

“The President is calling me a terrorist every day, and openly instructing the courts and the parliament against us. It wasn’t the judiciary who brought me here, but the President himself,” Reuters quoted him as saying.

The treatment of politicians, journalists, members of the judiciary and other public sector departments in the same way along with actual criminals and terrorists taint the credibility and integrity of trials, cast serious doubts over the claims of the Turkish authorities.

According to the government, anyone criticizing the president faces terrorism charges. This is true for NBA star Enes Kanter, for former national soccer star Hakan Sukur, who lives in the U.S. in self-exile, for Ahmet Altan, a novelist and journalist serving life in prison in Istanbul, for Asli Erdogan, who briefly stayed in jail and now lives in Germany in self-imposed exile. Former Cumhuriyet Editor-in-Chief Can Dundar, lawmakers, diplomats and countless exiled journalists and writers face the noxious charge of terrorist for their criticism of the government and the president.

The Case of NASA Scientist Serkan Golge: The conviction of NASA scientist Serkan Golge on terrorism charge encapsulates the gist of the matter about the political nature of trials. Golge, after one and a half year of pretrial detention, was sentenced to 7.5 years in prison over membership to a terrorist organization. The U.S. authorities long tried to secure his release, but to no avail. After the prison sentence, “a spokesperson for the U.S. Department of State said the United States is “deeply concerned” by Golge’s conviction, which came “without credible evidence.”

Golge was on a vacation along with his family in the southern province of Hatay when the coup attempt took place. The police arrested him over the coup-related and terrorism charges after a tip from a distant relative. The observers, the U.S. government and legal experts dismissed the accusations as groundless. The scientist remained in solitary confinement one and a half year before the announcement of the prison sentence.

The War Against Academia: The members of Turkey’s academia have also found themselves in the crosshairs of the authorities. Thousands of academics were either suspended or dismissed over alleged terrorism ties or Gulen affiliation. More than 1,000 academics faced probes and some of them were convicted over signing a peace petition calling for the cessation of the army operations in urban areas in southeastern Turkey in early 2016.

In a riveting report, the HRW stated that the Turkish government is “investigating and prosecuting academics on trumped-up terrorism charges.”

“The authorities,” the report noted, “are interfering with student protests on campus, and prosecuting student activists. And officials are interfering with academic research on controversial topics.”

It added: “Together these actions are creating a climate of fear and self-censorship on campus, and breaching Turkey’s obligations under human rights law to respect and protect academic freedom and freedom of expression.”

The universities have also faced accusations of collaborating with the government to muzzle critical academics.

The numbers reveal the true scope of the post-coup clampdown. As of September 2017, “a total of 5,717 academics in 117 universities have been sacked from their jobs in Turkey, according to Bianet.org; 15 universities have been shut down altogether; and, according to the Ministry of Justice, 69,301 students have been incarcerated as of the end of 2016, which accounts for one-third of the total number of prisoners in the whole country.”

The war on academy not only occurred through mass dismissals but also took the form of legal proceedings.

B)There Is No Judicial Independence in Turkey

According to international organizations, media and experts, there is no longer judicial independence in Turkey, something that has become a political reality after years of fraying at the heart of judicial affairs. The rot of the judiciary also took place in a larger time frame, but devolved into a full-blown fracturing in the aftermath of the coup attempt in 2016. The mass imprisonment of more than 3,500 judges and prosecutors dealt a heavy blow to Turkey’s judiciary, installing a fear regime that frightened whatever left of the independent-minded and norm-respecting judges and prosecutors.

According to the World Index that measures judicial independence, Turkey ranked at 111th place out of 140 countries.  The standing reveals where Turkey belongs to. Certainly, not to the league of advanced democracies.

Apart from this, there are countless reports by other organizations cling to a similar conviction about the lack of judicial independence in Turkey.

The Council of Europe’s 49-member Group of States against Corruption (GRECO) published a number of reports in a bid to evaluate the state of the judiciary in Turkey. While its reports in 2018 chiefly focused on the prevalence of corruption in Turkey, it also analyzed how the recent legislative measures “putting the independence of the judiciary from the executive and political powers at stake.”

A report by GRECO, which solely focused on the independence of courts, notes: “the fact that the newly-established Council of Judges and Prosecutors is appointed by the President of the Republic and Parliament, and none of its members are elected by the judiciary itself, runs counter to the fundamental principle of an independent judiciary.”

It further adds that:

“In summary, GRECO notes that only 2 out of 22 of its recommendations on these issues have been implemented satisfactorily by Turkey, leading GRECO to describe the current level of compliance as “globally unsatisfactory”.”

The lack of judicial independence particularly matters when it comes to extradition requests by Ankara. Other countries and courts must keep in mind the fact that if a certain person is sent back to Turkey, the prospect of standing a fair trial remains scantily dim.

The Case of Murat Arslan

Last year, a joint letter by four leading judicial organizations in Europe were firm in their conviction about this subject.

“On the occasion of the Human Rights Day 2018, the Platform for an Independent Judiciary in Turkey strongly emphasizes that basic human rights standards are neglected and violated in Turkey, inter alia through the abolishment of an independent judiciary and in so far arbitrary detention of thousands of Turkish judges,” a letter by the four organizations said.

Presidents of Association of European Administrative Judges (AEAJ), European Association of Judges (EAJ), Judges for Judges and Magistrats Européens pour la Democratie et les Libertés (MEDEL) expressed their concern over the ongoing trials against judiciary members. As an example of the collapse of judicial independence, the case of Murat Arslan, a judge and president of the Turkish Association of Judges and Prosecutors (YARSAV), was cited in the letter. Arslan was imprisoned in October 2016 and remains in prison ever since.

Arslan’s case struck a particular chord around the world.

“The conviction of Judge Arslan constitutes a severe and gross attack on the independence of the judiciary in Turkey, and in a democratic state under the rule of law an independent and impartial judiciary is a fundamental guarantee for society as a whole,” Diego Garcia-Sayán, the U.N. Special Rapporteur for the independence of judges and lawyers, said on Feb. 6 this year.

He said: “I remain gravely concerned at the adverse effects that the measures implemented by the Government of Turkey have had, and continue to have, on the equal and effective enjoyment of human rights and fundamental freedoms of targeted individuals as well as on the independence of the judiciary and the free exercise of the legal profession.”

Arslan was sentenced to 10 years in prison over alleged ties to the Gulen Movement, which is labeled as “FETO” by the Turkish authorities. So far now, as observers and the U.N. expert note, Arslan has been denied a fair trial, while authorities did not offer convincing evidence to substantiate their terrorism charges against the former YARSAV president.

“We have received information suggesting that the legal process against Mr. Arslan was not transparent and did not satisfy the criteria for judicial proceedings designed to safeguard the legal rights of the individual,” Garcia-Sayán said in his statement.

“The proceedings against Judge Arslan could have an adverse effect on the independence of the judiciary in Turkey, since other judges may be deterred from exercising their judicial independence and freedom of expression for fear of being subject to disciplinary or criminal proceedings,” the expert added in the statement appeared on the website of the U.N. Human Rights Office of the High Commissioner.

The previous year, the Council of Bars and Law Societies of Europe (CCBE), the European Federation of Journalists (EFJ), and the European Association of Judges (EAJ) firmly condemned the ongoing widespread persecution of lawyers, journalists, judges and prosecutors in Turkey. A joint statement underlined the importance of judicial independence to safeguard fair trials, the maintenance of the rule of law and separation of powers.

European-based Platform for Peace and Justice (PPJ) and New York-based Advocates for Silenced Turkey (AST) well documented how political authorities brought the judiciary into full-scale political control and deeply influenced the course of post-coup trials.

  1. C) Turkey shows of Contempt for ECHR Rulings

The relations came to a head between Ankara and the European Court of Human Rights (ECHR) when the court urged the release of Mehmet Altan and Sahin Alpay, two journalists who, after exhaustion of domestic legal channels, applied to the Strasbourg-based court in a quest for legal remedy. The lawyers of the two journalists submitted their application on the ground that they had no chance to get justice within the domestic realm of Turkey after a local court refused to recognize a ruling by Constitutional Court in Ankara. The court ruled that the two journalists’ right to a fair trial was violated.

Both journalists were finally released, but it happened months after the ECHR’s involvement in the legal process.

A second clash took place when the ECHR urged Turkey to release Selahattin Demirtas, former co-chair of pro-Kurdish People’s Democracy Party (HDP), late last year. The Kurdish politician has remained behind bars since October 2016 and he faces up to 140 years in prison if he is convicted.

“The Court found that the judicial authorities had extended Mr Demirtas’ detention on grounds that could not be regarded as ‘sufficient’ to justify its duration,” the Strasbourg-based ECHR said in a statement.

The court’s call, however, fell on deaf ears in Turkey. President Erdogan sharply criticized ECHR and said it’s ruling was not binding for Turkey.

Kati Piri, the European Union’s Rapporteur on Turkey, noted that “His detention is of a political, not a criminal nature.”

On Nov. 30, the Turkish court ruled to keep the Kurdish politician, in disregard of the ECHR ruling.

The diplomatic tussle has not ceased since then. EU officials called on Turkey to implement ECHR ruling without delay. Timo Soini, the foreign minister of Finland which holds the presidency of the Committee of Ministers of the Council of Europe (CoE), urged Turkey to respect the court’s decision.

“As the Committee of Ministers we are aware of this decision and have noted that ruling regarding violations. This is not the final decision; however, we expect that member countries note ECHR decisions and respect them. Again, we expect that member countries act in accordance with the European Convention on Human Rights,’’ Euronews quoted Soini as saying on Jan. 22 this year.

Ankara’s blatant disregard of ECHR rulings, which are binding for Turkey’s domestic legal system, should reveal the state of the judiciary in Turkey. This must be a reference point for outside legal authorities when they face Ankara’s legal requests either regarding the extradition of dissidents or on other topics.

  1. D) Prosecution of Lawyers

In a country where the members of the judiciary were haunted like dangerous criminals, it would be difficult to assume the existence of judicial independence or the proper functioning of judicial affairs without political intervention. The HRW came up with a timely report that offers riveting details about how lawyers, who represent the cornerstone of any law system on earth, have been systematically targeted.

The government, the HRW noted, brings charges against lawyers who expose rights abuses with little or no evidence of their membership of terrorist organizations. It says:

“Courts have complied with the attack on the legal profession by sentencing lawyers to lengthy prison terms for terrorism on flimsy evidence and in trials that ignore fair procedure. The abusive prosecutions of lawyers have been accompanied by legal amendments that undermine the right to legal counsel for those arbitrarily detained on terrorism charges.”

The practice has sent a chilling echo among scholars and legal experts monitoring the breakdown of the legal system in Turkey.

“Putting hundreds of lawyers in jail and on trial, and restricting their ability to act for people in police custody and in court, shows the dire state of Turkey’s criminal justice system and should be of grave concern to everyone in Turkey and internationally,” Hugh Williamson, Europe and Central Asia director at Human Rights Watch, said after the release of the report. “Lawyers are central guarantors of the right to a fair trial and Turkey’s willingness to flout it over the past three years is deeply alarming,” the HRW website quoted the director as saying.

The problem is deeper than it is thought. According to a report by Arrested Lawyers Initiative, “1546 Turkish lawyers have been prosecuted and 598 lawyers have been arrested since 2016 July. And so far, 274 Turkish lawyers have been sentenced to 1762 years in prison by the first instance courts under article 314 of the Turkish Penal Code.”

Numbers reveal the depth and scale of the crackdown on Turkey’s lawyers.

The HRW report demonstrates that the equality between the prosecution and the defense has disappeared. The central targets of the post-coup crackdown were lawyers, who represent the members of the Gulen Movement, which was was designated as a terrorist outfit by the Turkish authorities, and the outlawed Kurdistan Workers’ Party (PKK), and some small far-left groups. In addition, authorities also target lawyers whom they believe to have any form of affiliation or link to the Movement, which bore the brunt of the clampdown following the putsch.

A lawyer in Ankara told the HRW how lawyers are being prosecuted relentlessly:

“For courts to see no distance between a lawyer and their client is a new development. If a lawyer defends a Kurd these days that makes him a Kurdish nationalist. If he defends a FETÖ suspect he is a FETÖ member. As a lawyer you meet your client in prison and you have no possibility of confidential communication since there’s a prison guard present, a microphone, and a camera. In court, the judges accept none of your requests, such as hearing independent expert witnesses. We are seeing eight-hour trial hearings which are purely symbolic and in which nothing is taken seriously. The courts are completely unresponsive to lawyers. There is no equality of arms left, no possibility of being able to look the judge in the eye.

Judges refuse lawyers’ requests for hearing witnesses or expert views that would help the defense at trials. The emergency rule declared in the aftermath of the coup also severely limited people’s right to legal defense and counsel. The emergency decrees removed the safeguards protecting the privacy of lawyer-client relationship.

The HRW report also exhibits the fact that how courts dismiss lawyers as unnecessary elements during trials:

“Lawyers have reported to Human Rights Watch that, in terrorism trials, courts have also become increasingly unresponsive to their petitions to have evidence critically examined or tested and to hear witnesses for the defense. They often see themselves as little more than “extras” in court hearings. Equality of arms between the prosecution and the defendant is severely undermined when the role of the defendant’s lawyer is unduly restricted and the adversarial aspects of trial proceedings are little more than a formality.”

There are more reports regarding this matter. Some of them were cited in previous sections, therefore this section will remain limited to these two leading reports demonstrating the mass prosecution of lawyers.

  1. E) Turkey’s Abuse of INTERPOL System

When Turkey’s domestic crackdown on opponents of all political affiliation and social conviction took global dimensions, Ankara’s requests for Interpol Red Notices inundated the system of the international police body. Turkey’s unrelenting demands, along with Venezuela, China, Iran and other authoritarian countries, began to overwhelm Interpol. As a result, Lyon-based Interpol struggles to cope with the staggering numbers of requests.

Turkey’s unceasing demands have created pitfalls and challenges for the international police body. A spat occurred when Interpol reportedly refused Ankara’s pursuit of Red Notices two years ago.

According to a report appeared on the Hurriyet Daily News in July 2017, Ankara tried to upload the names of 60,000 people, most of whom were perceived affiliated with Gulen Movement abroad, to Interpol’s system. The Turkish media reported that Interpol removed Turkey from its database after Ankara uploaded those 60,000 names. The media report subsequently elicited a denial from Interpol.

“Interpol supports each and every one of its 190 members as part of security cooperation benefits. No access block has been implemented in Interpol’s databases, including for those who have international warrants in Turkey,” the statement, issued by Interpol and quoted by Hurriyet Daily, said.

In the end, Interpol only blocked 60,000 entries from Turkey, but did not shut down Ankara’s full-scale access to the system. Yet, Interpol’s understandable attempt to soothe the nerves of Turkey did not clear the fog of controversy over the major conflict — the claim over the abuse of the system.

“This database works as an international criminal alert, notifying all 192 countries in the database that a person is wanted by police,” Jago Russell, the chief executive of London-based Fair Trials International, wrote in an op-ed commentary for Foreign Policy.

Russell contended that “entering 60,000 people into a database designed to help locate the most dangerous criminals on the planet is clearly an abuse of the system.” This becomes crystal clear when viewed together with the fact that “there were just under 13,000 new Red Notices across the globe” during the entire year of 2016.

The issue, however, as Russell noted, is not limited to Turkey. China and other countries face international criticism over credible allegations of abusing the system. But none of the countries come closer to Turkey in terms of pushing Interpol to the point of breakdown by demanding so many notices. Ankara’s opaque and vaguely-defined anti-terrorism laws create a constant clash with international organizations when Turkey treats its journalists, writer and dissidents in the same way it treats real criminals and terrorist suspects.

Ankara’s alleged abuse of Interpol first came to surface during 2017 summer when the Turkish authorities aggressively pursued a German-Turkish writer. Turkish-born author Dogan Akhanli was briefly detained in Madrid on Turkey’s warrant. His detention sparked a diplomatic spat between Germany and Turkey, while Spain was caught in the midst of a diplomatic tug of war over Ankara’s use of Interpol.

The only reason Akhanli wound up in a Spanish jail, many observers asserted, was his criticism of the Turkish government and his critical stance over sensitive historical matters such as the Armenian Genocide in 1915. After Germany’s intervention, the Spanish authorities released him but did not allow him to leave Madrid until a thorough review of Turkey’s extradition request.

The detention of Akhanli, however brief it might be, aroused widespread criticism and rekindled the debate over Ankara’s arbitrary use of Interpol’s Red Notice system. Parliamentary Assembly of the Council of Europe (PACE) Rapporteur Bernd Fabritius criticized Turkey for abusing Interpol. When asked by the press members in August 2017 about Akhanli’s arrest, German Chancellor Angela Merkel was equally open in her criticism. “We must not misuse international organizations like Interpol for such purposes,” Merkel told reporters.

Regarding Merkel’s remarks, Russell, speaking to The Globe Post after Akhanli’s arrest, noted that there were an emerging consensus and awareness over Turkey’s intentions in its use of Interpol notice system.

Earlier in August, Hamza Yalcin, a Swedish-Turkish reporter, also was detained in Spain after Ankara tried to secure his imprisonment through Interpol. Several other prominent Turkey’s dissident journalists experienced a similar ordeal when they were briefly detained in different parts of Europe over the same reason.

Interpol once again came under media spotlight when Ankara issued a Red Notice against Enes Kanter, an NBA star living in the U.S.

“Another flagrant abuse of the Interpol Red Notice system. Turkey seeks to arrest NBA player Enes Kanter for making disparaging remarks about Turkish President Erdogan. Interpol should firmly and publicly rebuke this politically motivated abuse ASAP,” Bill Browder, CEO Hermitage Capital, Head of Global Magnitsky Justice campaign and Author of Red Notice, tweeted on Jan. 16 this year. The Turkish attempt made Kanter cancel his participation in his team’s London tour over the fear of arrest in the U.K.

Interpol faces calls for reforming its internal review mechanism. The international police body is accused by critics of cozying up to the authoritarian governments, acquiescing to their legally controversial demands.

Fair Trials International, the London-based organization which assists victims of unjust criminal charges all over the world, tracks records of Interpol Red Notices. “A comprehensive 2013 study by Fair Trials details how Interpol’s internal review mechanism fails to differentiate between criminal cases and politically-motivated arrest warrants for dissidents,” The Globe Post reported in August 2017.

In his Foreign Policy article, Russell urges Interpol to be careful against countries’ attempts to abuse Red Notice system for political purposes to muzzle dissent and silence critical voices abroad. “If Interpol wishes to remain a trusted tool in the fight against crime,” Russell warned, “it must ensure that it is not abused by governments seeking to enforce political vendettas.”

Although Interpol took some important steps to fight against abuse attempts, countries, especially Turkey, cultivates new methods to circumvent Interpol’s mechanism. Ankara periodically releases “Terrorist Wanted” lists and pledges bounties to those who help the Turkish authorities to spot and locate the wanted suspects living in Europe. This new strategy pits Turkey against the European countries, which drag their feet in investigating and pursuing people, mostly dissident people, demanded by Ankara.

Turkey also manipulates Interpol to snatch opponents from some countries, which are more congenial to Ankara’s terms. Interpol’s communication system that allows members countries to contact with each other directly through the police body’s network was abused by the Turkish authorities in its abduction attempts.

After Turkey convinces a given country’s police officials, those officials refer Interpol communication system as the legal ground for justification when they acquiesced to Ankara’s demands for the extradition of critical opponents. When challenged by human rights activists and press members, the officials of the local country show Ankara’s request as the legal basis for justification. This allows Turkey to deflect international criticism.

 European countries coalesced around a new idea in the 1920s to bolster and coordinate their policing efforts on an international scale. The creation of the body allowed them to increase international police cooperation in order to overcome challenges produced by mutually exclusive national sovereignty and jurisprudence. The headquarters of Interpol was moved to Lyon, France, following the Second World War. It now has more than 190 member countries.

  1. F) British Court Rejects Turkey’s Extradition Request

A British court ruling in London last year threw credibility of the Turkish government’s extradition requests against dissident figures living abroad into serious jeopardy. Businessman Hamdi Akin Ipek, who found himself in the crosshairs of President Erdogan’s government for his past affiliation with Gulen Movement, is waging a legal battle in the U.K. to avoid extradition. His case and a recent court decision demonstrate the flawed nature of the bid by the Turkish authorities to have government critics extradited to Turkey. Ipek sought refuge in London before the attempted coup in 2016. He fled Turkey after the government seized Koza Ipek Media Group outlets in late 2015 and suspended all his assets. The takeover of multibillion-dollar companies played a key role in Ipek’s departure. Yet, his presence in London did not spare him from Ankara’s relentless efforts to get him extradited.

But the Turkish government’s efforts hit snags last year. Judge John Zani, who oversaw his case after the Turkish authorities brought the issue to a court, rejected extradition request of Ipek and three other Turkish nationals over the risk of serious mistreatment and lack of fair trial.

“I am persuaded… that there is substantial evidence that this request is politically motivated,” the judge said in his ruling.

“I am entirely satisfied that, by reason of their actual or perceived political views, coupled with the assertion by the Turkish authorities that they are part of the hierarchy of the Gulenist movement, each defendant before this court runs a real risk of Article 3 (of the Human Rights Act) breaches.”

The British court ruling would set a precedent. It also sets an example for other countries, which found themselves in a similar legal imbroglio after Ankara’s diplomatic push over the extradition of dissidents.

  1. G) Perils of Extradition

There is an abundance of cases that clearly illustrates the perils and risks rooted in compliance with Ankara’s requests for extradition of government opponents. The ongoing mass arrests of people on a daily basis shows no signs of winding down. Hundreds of people are imprisoned every week. The purge, even nine months after the end of emergency rule is an ever-present threat for public workers and members of the military.

So far now, as former Justice Minister and Deputy Prime Minister Bekir Bozdag boastingly noted, Turkey has snatched more than 80 people affiliated with Gulen Movement around the world. The number swelled more than 100 by the end of 2018.

“We’ll continue our battle against Gülen supporters who have seriously harmed our country socially, politically and economically, until we completely eradicate them,” President Erdogan said in July, according to Ahval.

Majority of these cases took place in dubious legal and diplomatic grounds. The Turkish intelligence agency, National Intelligence Organization (MIT), directly steered the process of illegal abductions and kidnappings of Gulen-related people from a number of countries, including Pakistan, Malaysia, Gabon, Kosovo, Moldova and Ukraine.

The case of Kacmaz family in Pakistan is one of the leading examples of the norm-defying and rule-bending approach of the Turkish authorities when it comes to targeting the perceived members of the Movement across the world.

“Mesut Kacmaz, his wife and two daughters were restrained, blindfolded and hustled into unmarked pickup trucks in Lahore last month by more than a dozen plainclothes security agents,” according to a witness, The Washington Post reported in October 2017. Kacmaz and his family members were sent back to Turkey over Ankara’s extradition request. But how the entire drama played out aroused international criticism and opprobrium. Given the fact that Kacmaz and his family were under the U.N. refugee protection, Pakistan’s willingness to collaborate with the Turkish officials came under media scrutiny.

Another attempt by the MIT to capture a number of teachers from Mongolia was foiled after media reported it and the plane carrying the abductees was grounded at the airport last summer.

“Turkey has maintained that it extradites suspected Gulenists only with the permission of the foreign governments concerned,” the New York Times reported then. But the case of education representative Veysel Akcay, who has lived in Mongolia for nearly 25 years, appears to cast doubt on that claim, the Times noted.

The extradition of teachers in Moldova plunged the tiny country into a political maelstrom. A detailed report by the AST last September documented how the Turkish intelligence played a key role in the incident. Ankara and the local collaborators from Moldovan security apparatus trampled on national and international laws to steer the process of snatching teachers.

The abduction of teachers linked with the Gulen Movement from Kosovo was another case point. The kidnappings in a Balkan country, which aspires to join the E.U., reveals the depth and reach of Turkey’s long arm to capture its dissidents from wherever they are.

The brazenness and recklessness of Turkey’s global purge do know no bounds and limits.

“Since before the coup attempt, but with frantic intensity since then, the Turkish state has been hunting its opponents abroad, especially those who belong to the Gulen movement. In at least 46 countries across four continents, Turkey has pursued an aggressive policy to silence its perceived enemies and has allegedly used Interpol as a political tool to target its opponents,” Nate Schenkkan from Washington-based Freedom House, wrote in an article for Foreign Affairs on Jan. 29, 2018.

At least 15 countries, including Angola, Azerbaijan, Bahrain, Bulgaria, Georgia, Indonesia, Kazakhstan, Malaysia, Morocco, Myanmar, Pakistan, Qatar, Saudi Arabia, Sudan, and Turkmenistan, as of January 2018 have either arrested or deported members of the movement, according to Schenkkan. After that date, Kosovo, Moldova and many other places joined those countries.

But as more and more reports by international media outlets emerged, the true depth of the Turkish government’s global operations has been laid bare. A group of 13 journalists from nine media organizations from eight countries banded together to investigate Turkey’s secret torture sites after the Turkish authorities kidnapped opponents from all around the world.

“In a near-repeat of the CIA’s ‘extraordinary renditions’, the regime of Turkish president Erdoğan is kidnapping dozens of members of the Gülen movement from around the world. Victims are now raising a serious accusation: secret torture sites are part of the repression,” CORRECTIV reported on December 11, in 2018.

But unlike the CIA and its ‘extraordinary rendition’ program set up after the 11 September terror attacks, Turkey makes no secret of its abductions, the joint study noted. “We will return to the country one by one those Gülenists who have fled and now think they’re safe, and we will hand them over to our justice system,” the report quoted Erdogan as saying.

It need not require a great deal of knowledge to realize that majority of the illegal kidnappings and controversial extraditions took place in countries where rule of law and judicial independence are not firmly entrenched but open to political machinations and influence. The threat has not receded since then.

“The global purge is a threat not just to the Turkish diaspora but to the rule of law everywhere,” Schenkkan concluded his article, expounding on the ramifications of Turkey’s relentless global haunt for the international order.

In addition to this direct and bold attempts, Ankara seeks alternative ways to do its bidding regarding extradition cases.

After the foreign countries dismissed Ankara’s extradition requests for dissidents on terrorism charges, finding such legal rationale as baseless and groundless in the face of political motivations, the Turkish government has employed a subtle set of measures to circumvent the potential legal obstacles for its extradition bids.

One of the tactics adopted by the Turkish government is this: If Ankara knows that its bid would falter to have someone extradited to Turkey, then the Turkish government comes up with a set of forged charges of petty crimes against a certain name.

For instance, F. Z. lives in New York and is wanted by Turkey. Instead of a direct extradition request, the Turkish prosecutors then launch a legal probe over allegations of a less serious crime back in Turkey. Even if that did not happen in Turkey, it would take time for the authorities in the U.S. to ascertain facts. The Turkish Justice Ministry sends dossiers to the U.S. counterparts. This protracted process would ruin F.Z.’s life in the U.S. as his asylum case faces suspension and a criminal investigation against him is launched by the U.S. prosecutors to confirm or reject the allegations laid against him. This would take time. In the meantime, the subject would fail to proceed in his life, would not launch a business or even get a driver license. The aim by Turkey is to give as much problem as possible to a government opponent and make his life in the U.S. an ordeal.

CONCLUSION

The crux of the matter is, as all of the arguments put forward above clearly demonstrate, that any extradition request from Ankara must be immediately rejected. This should be done so on the grounds elaborated in detail above. Credible reports by respected international organizations about the collapse of rule of law in Turkey, the assertion of political control over the judiciary, the arbitrary nature of post-coup trials, the lack of fair trial, the death of judicial independence, the mass prosecution of lawyers, the political nature of extradition requests offer ample evidence with regard to political machinations and intrigues that deeply rooted in Turkey’s global extradition efforts.

To put it succinctly,

  • Post-coup trials are political;
  • There is no judicial independence left;
  • There is a mass prosecution of lawyers, which means that defendants are unable to get adequate legal counsel and defense;
  • There is a high risk of mistreatment and torture
  • Turkey systematically abuses Interpol’s Red Notice system to get dissidents abroad;
  • Extradition is a highly risky endeavor and foreign countries must beware of political machinations embedded in Turkey’s bids;
  • There are ample evidence that show someone, if extradited to Turkey, would not get a fair trial, even would face torture

By all indications, the situation in Turkey’s domestic realm seems to be getting worse for dissidents, especially for those with perceived ties to the Gulen Movement. The constant threat of purge or kidnapping has become part and parcel of a new normal in many people’s daily life.

The threat against Gulen-affiliated people is much more profound and immediate. A new surge in enforced disappearances and abductions against the movement members is telling in this regard.

The government’s enmity toward this group indicates no signs of abating. What would await the members of the movement? Speaking days after the failed coup in July 2016, Turkey’s then-Economy Minister Nihat Zeybekci, if indiscreetly, disclosed what the government had in mind.

“We will punish them in a way that they will beg us to slaughter them to stop their suffering. We will let them beg for death.”

His words were (are) no idle threats. Although two years passed after the minister’s remarks, Turkey never lets up on its operations or persecution. The commitment to eradicate the movement at home and abroad remains a lasting element of Erdogan’s legacy and Turkey’s persistent diplomacy in the world. Another senior government official came up with a fresh threat against Gulen-related people, who live in the U.S.

Regardless of whether Turkey would follow them with deeds, Presidential Spokesperson Ibrahim Kalin’s threats of targeting Gulen sympathizers on the U.S. territory only comes as a re-assertion of the fact that Ankara would never abandon such thinking.

“Relevant units and institutions will continue their operations in countries where FETO operates, whether in the U.S. or another country,” NBC News quoted Kalin as saying. “The Turkish Republic will not let them rest.”

His disregard for potential spillover of any such attempt into the century-old Turkish-American relations reveals a prevalent mindset that guides Ankara’s foreign policy. His remarks matter because they illustrate the point about why foreign countries should be extra vigilant and attentive when they come to deal with Turkey’s legal extradition efforts.

There is another disturbing element in relation to the evolution of the coure of political events in Turkey. To shield both security personnel and its supporters from prosecution, the government passed a decree in December 2017. The decree granted immunity from prosecution to people who might have committed crimes on behalf of the government to ward off the threat against the political order. Its content also included acts perpetrated during the coup attempt.

According to critics, the government took the step to protect its supporters who embroiled in violent acts on July 15 and July 16.

The Bloomberg report summarized noted that the “emergency decree risks inciting political violence by giving legal cover to pro-government vigilantes, opposition parties and legal authorities warned.”

Bloomberg defined the decree as follows:

“The order, declared in the Official Gazette on Sunday, grants sweeping immunity for acting against terrorism or attempts to overthrow the government. Civilians won’t face legal consequences for actions against last year’s coup attempt — or more importantly — anything that could be considered its “continuation,” the decree said.”

That aside, the government’s embrace of mafia bosses like Sedat Peker, who keeps threatening Erdogan’s critics, reveals another troubling aspect of the new pervasive culture in Turkey. While academics get lengthy sentences and journalists rot in prison, convicted gang leaders are treated with respect by authorities. In his latest call this February, Peker called on Turkish citizens to purchase guns before the local elections.

After brief questioning, he was released by prosecutors without a need to refer him to court. The discrepancy between the treatment of law-abiding citizens and criminal figures is not lost on many people and stirs up resentment on social media.

In conclusion, before reviewing Ankara’s extradition requests, every country must keep in mind the prevailing political realities and conditions in Turkey. The E.U. candidate and NATO ally is no longer a country where rule of law exists. It is a country where the terror of purge and brutal political persecution reign while opponents and dissidents immensely suffer.

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Oppression of Supporters of the Hizmet Movement in Turkey and Abroad

There is an ongoing suppression of dissidents following the attempted coup of July 15, 2016. The state of emergency and the decree laws pave the way for discrimination and segregation on the basis of ethnicity, religion, and political or other opinions. Women and children are discriminated and segregated on the basis of their identity or the identity of their family members and parents. Ordinary citizens including, women, men, children, elderly, and disabled people face discrimination based on physical or mental disability, birth registration, place of residence, social segregation, gender or health, and sometimes a combination of these reasons.

Below are some types of discrimination that people face in Turkey:
• More than 150,000 public officials are dismissed from their positions without any evidence, due process and any explanation but their names appear on long lists.
• More than 60,000 people have been arrested because of alleged links with the Hizmet Movement without any concrete criminal evidence. Much more were taken into custody and released under probation.
• The government violated people’s fundamental right to travel by either canceling or not issuing their passports.
• The government’s inflammatory rhetoric and hate speech target the followers of the Hizmet Movement and other dissidents. Both public and the government have been labeling people as terrorists even though there is no such indication, only because they support or are not against the Hizmet Movement.
• Assets of the Hizmet Movement’s supporters have been frozen leading people to suffer also financially besides other problems.
• People labeled as terrorists cannot find a job neither in public nor in private field.
• Dissidents and their families are deliberately deprived of social services and financial resources needed for physical survival.
• The state of emergency and the new decree laws impose life-threatening forcible discrimination and segregation in Turkey.
• Majority of the Turkish citizens face fear and betrayal in a police state.
• The dissidents and human rights defenders are under arbitrary detention and arrest without due process.
• There are grave violations of international human rights law and atrocity crimes including torture, inhuman and degrading treatment.
• There is a lack of legal remedies in the Turkish judiciary, people cannot look for a remedy from the courts and other mechanisms such as the State of Emergency Procedures Investigation Commission.
• Torture and other similar incidents have been witnessed a lot especially during police custody.
• People arrested over Hizmet links are kept under inhuman conditions in overcrowded prisons.
• Both arrestees and their visitors are under psychological pressure by the guards.
• Family members of people who are at large are threatened by police officers to be taken into custody and arrested if they do not give information about their relatives’ whereabouts.

Below are some types of human rights violations Turkish people with links to the Hizmet Movement face abroad:
• Turkish citizens abroad are vulnerable for arbitrary detentions, abductions and expulsions, therefore, need protection.
• There are 229 Turkish citizens abroad who are called to return Turkey; if not, they will be deprived of nationality.
• Hundreds and thousands of Turkish citizens abroad are denied of consular services including newborns who became stateless outside of Turkey. Consulates do not issue passports to these people as well.
• Turkish citizens seeking asylum would face torture and ill-treatment if deported to Turkey.
• Because of passport cancellations by the Turkish government, family members of the supporters in Turkey cannot leave Turkey leading to family separation.
• Foreign governments do not grant visa in most cases to the families of asylum seekers that include the supporters of the Hizmet Movement abroad, which again leads to family separation.
• In some cases, family members of the supporters of the Movement could be able to leave Turkey but reach out the countries that are not safe such as Kyrgyzstan and Morocco. It is highly risky that they might be deported or will face same type of persecution in these countries because of Erdogan’s pressure. Again because of visa and passport problems, they cannot go to safer countries.
• In most cases assets and bank accounts of the supporters and their family members are frozen by the government, thus people cannot transfer their funds abroad and struggle for a living.
• Most people seeking asylum abroad are still waiting for a decision especially in the United States because of the long process of asylum application. They live in uncertainty by not knowing when will they be granted asylum and attain their rights.


Download as a PDF File: AST_2-1-2018_oppression-of-supporters-of-the-hizmet-movement-in-turkey-and-abroad_P10

 

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URGING AUTHORITIES TO TAKE ALL NECESSARY STEPS FOR THE PROTECTION OF HIZMET PARTICIPANTS

Urging Authorities To Take All Necessary Steps For The Protection of Hizmet Participants

As it is known Turkish government has been taking strict measures to silence dissidents from various ideologies recently. Gulen Movement has been the main target of the government, which is a faith-based group of people engaging in different voluntary activities such as education, business and health. Alleged supporters of the Movement in Turkey have been dealing with arrest, imprisonment, torture, inhuman and degrading treatment, confiscation and passport seizure. Regrettably, Turkish government’s actions against the Gulen Movement are not limited to Turkish borders but are also extraterritorial. There are many examples of abductions and physical violence incidents in several countries as well as threats by pro-government people referring to the supporters abroad. Individuals linked to the Movement cannot feel safe abroad either.

It is evident that the actions of the government have cross-border impacts putting even people abroad at risk. People that are perceived as linked to the Gulen Movement are justifiably right to be afraid of the possible incidents. Therefore, we as the Advocates of Silenced Turkey urge foreign governments to take all the necessary steps to ensure safety to these people before it is too late. Security officers must be aware of the potential risks. Officials working for the Turkish government abroad must be watched closely, they must be prevented if they are in preparation of any harm. Lastly, both individuals and organizations that are deemed to be Hizmet participants must be provided extra protection when there is an imminent risk targeting them.

We, as the Advocates of Silenced Turkey, remind foreign security officers and relevant bodies of the foreign governments the risks Hizmet participants may face, and to request all necessary steps to be taken to provide sufficient protection ensuring human rights and fundamental freedoms.

For more detailed information about these risks, please look at the report prepared by the Advocates of Silenced Turkey on the current and possible threats supporters of the Gulen Movement face abroad titled “I Cannot Say We Are Absolutely Safe Even Abroad.”

Download the report as pdf: AST_Report_Threats_Gulen Movement

STEP 1:
Sign the petition. We will deliver the petitions to foreign security officers and relevant bodies of the foreign governments to request support in reducing risks Followers of the Gulen Movement face.

The petitions will be delivered to following addresses

U.S. Homeland Security
United Nations Human Rights Council (UN HRC)
International Court of Justice
The Federal Intelligence Service of Germany

Or

Express your views or send attached statement to following addresses:
(Some of the institutions do not have an email address. You would need to submit it to them through their submission form on their websites)

Download sample statement as a word document: AST_Letter_Threats_Gulen Movement

1) U.S. Homeland Security
Email: https://www.dhs.gov/online-forms-and-email / hrv.ice@dhs.gov
Phone: 202-282-8000
Twitter: @DHSgov
Website: https://www.dhs.gov/

2) The Federal Bureau of Investigation
Email: (need to submit form online)
Phone: 202-278-2000
Twitter: @FBI
Website: https://www.fbi.gov/

3) U.S. Department of State
Email: https://register.state.gov/contactus/contactusform
Phone: (202) 647-6575
Twitter: @StateDept
Website: https://www.state.gov/

4) U.S. Department of Justice
Email: https://www.justice.gov/doj/webform/your-message-department-justice
Phone: 202-353-1555
Twitter: @TheJusticeDept
Website: https://www.justice.gov/

5) United Nations Human Rights Council (UN HRC)
Email: civilsociety@ohchr.org
Phone: (+41) 22 917 9656
Twitter: @UN_HRC
Website: www.ohchr.org/hrc

6) European Court of Human Rights
Email: http://appform.echr.coe.int/echrrequest/request.aspx?lang=gb
Phone: (+33) 0 3 88 41 20 18
Fax: (+33) (0)3 88 41 27 30
Website: http://www.echr.coe.int/pages/home.aspx?p=basictexts

7) International Court of Justice
Email: information@icj-cij.org
Phone: (+31) 70 302 23 23
Fax: (+31) 70 364 99 28
Twitter: @CIJ_ICJ
Website: http://www.icj-cij.org/en

8) European Union
Email: (need to submit form online)
Phone: 80067891011
Twitter: @EU_Commission
Website: https://europa.eu/european-union/index_en

9) Interpol
Email: https://www.interpol.int/Forms/CPO
Fax: +33 4 72 44 71 63
Twitter: @INTERPOL_HQ ‏
Website: https://www.interpol.int/

10) The Federal Government of Germany
Email: (need to submit form online)
Website: https://www.bundesregierung.de/Webs/Breg/EN/Homepage/_node.html

11) Federal Office for Migration and Refugees
Email: (need to submit form online)

12) Federal Office for Migration and Refugees
Email: (need to submit form online)
Phone: (+49) 911 9430
Twitter: @BAMF_Dialog
Website: http://www.bamf.de/EN/Startseite/startseite-node.html

13) The Parliament of the Federal Republic of Germany
Email: https://www.bundestag.de/en/service/contactform
Phone: (+49) (0) 30 227-0
Fax: (+49)(0) 30 227-36878
Twitter: @INTERPOL_HQ ‏
Website: http://www.bundestag.de/en/

14) The Federal Intelligence Service
Email: zentrale@bundesnachrichtendienst.de
Phone: (+49) (0) 30 4 14 64 57
Website: http://www.bnd.bund.de/EN/_Home/home_node.html

15) Hellenic Republic Ministry of Foreign Affairs
Email: http://www.mfa.gr/en/contact/mfa-en-contacts/hellenic-ministry-of-foreign-affairs.html
Phone: (+30) 210 368 1000
Fax: (+30) 210 368 1717
Website: http://www.mfa.gr/en/

STEP 2:
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European Court Of Human Rights Should Reconsider Judicial Independence in Turkey

POSITION PAPER
EUROPEAN COURT OF HUMAN RIGHTS SHOULD RECONSIDER JUDICIAL INDEPENDENCE IN TURKEY BEFORE REFERRING CASES TO DOMESTIC AUTHORITIES

Background
In recent years and in particular in the aftermath of attempted coup of  July 15, 2016, the Turkish government has been targeting dissidents belonging to different ideologies. Among the many dissident groups, in particular the Gulen Movement has been the primary target. The members or sympathizers of the movement have been subject to extreme and unlawful measures,  including dismissals, detention, arrest, imprisonment, enforced and involuntary disappearance, seizure of their assets and passport cancellation. International organizations, including the United Nations, the Council of Europe and the European Union have repeatedly expressed their grave concern regarding the human rights violations perpetrated on individuals by the government. Repeated calls to Turkey to comply with its obligations under its own legislation and the international human rights law have however had little, if any effect to the improvement of the human rights situation in the country.
The far-reaching, increasingly repressive and almost unlimited discretionary powers exercised by the Turkish authorities during the state of emergency – now in its 15th month – endanger the general principles of rule of law and human rights safeguards, the ones the state of emergency is designed to protect.
The human rights protection system of the Council of Europe thus represented,  a glimmer of hope for the people of Turkey as it has been traditionally one of the most successful systems in the world protecting human rights and fundamental freedoms, which decisions are also binding for Turkey.
Regrettably, the European Court of Human Rights (hereinafter “ECtHR”), which monitors the implementation of the European Convention on Human Rights in the Council of Europe member states has been rejecting the applications related to recent events taking place in Turkey on the ground that the applicants have not exhausted domestic remedies. The Court specifically refers to the need to exhaust “available” domestic remedies, i.e. including the complaint procedure presumably offered through the establishment of the State of Emergency Inquiry Commission (hereinafter “the Commission”), as provided for in Emergency Decree 685.

Brief analysis
The brief analysis in this section argues that the establishment of the Commission cannot be an effective remedy for more than 100,000 dismissed individuals.
In absence of any clear procedure to challenge decisions on their abrupt dismissal, public officials dismissed from office and organizations dissolved by emergency decrees launched either individual or concurrent appeals with administrative bodies (administrative remedy), administrative courts, the Constitutional Court and the European Court of Human Rights . The outcome of the appeals has been devastating for hundreds of thousands of families and entire communities across Turkey.
Few administrative appeals have been relatively successful in restoring several individuals in their former positions. Administrative appeals however are not guided by any rules or principles and in no respect can these appeals be regarded as an effective remedy.
In the aftermath of July 15, 2016, both the Constitutional Court and the ECtHR were flooded with individual applications originating from Turkey. 8,308 applications were lodged with the ECtHR against Turkey in 2016, compared to only 2,212 in the previous year [2015].[1] If necessary measures were not taken, having into account that most dismissals have not yet been brought before the ECtHR in the post July 15 context, it was obvious that the sheer volume of applications yet to reach the ECtHR, seriously risked bringing down the entire ECtHR system.
The Venice Commission noted in the above context that both administrative courts and individual application to the Constitutional Court were not available to public officials who were dismissed by Emergency Decrees.[2] Having made this determination, the Venice Commission recommended that the government establish an ad hoc commission to review the State of Emergency measures.[3] The Secretary General of the Council of Europe made a similar recommendation, which was supported by an ad hoc sub-committee established by the Parliamentary Assembly of the Council of Europe.[4]
With the intention to preempt sharp criticism from the Council of Europe resulting from its relentless crackdown on dissent, the government issued Emergency Decree 685,[5] which establishes the Commission.[6]
To illustrate the immediate effect of its issuance, on the same day the Emergency Decree was published (January 23, 2017), the Parliamentary Assembly of the Council of Europe rejected[7] the request to hold an urgent debate on Turkey.[8]
By mid-November 2017 the Commission has received more than 100,000 cases from different occupational groups such as military personnel, police officers, teachers and academics. Since its establishment the Commission has taken no single decision on any of the hundreds of thousands of applications it has received ever since. As a matter of fact, the government is yet to appoint a president to head the Commission.[9]
Even if the Commission begins its work immediately, there will still be doubts regarding its impartiality, just as the judicial system in general. These concerns have been, inter alia, raised by various governmental, intergovernmental and non-governmental organizations as well as legal and human rights experts. Former judge of the ECtHR Riza Turmen, for instance, has argued  that possible non-transparency of the Commission’s work and appointment of its members create reasonable questions regarding its independence.[10]
The Commission is predetermined to fail in achieving its alleged objectives and serve the interests of justice:
First, the seven members of the Commission are chosen from the same institutions that have decided for the dismissals.[11] The principles of independence and impartiality are thus disregarded from its inception.
Second, even based on the most optimistic estimates and presuming that it performs its work in good faith – given the workload, it will take many years for the seven-member Commission to review hundreds of thousands of applications – that is only one of the subsequent domestic remedies to be exhausted.
Third, for cases reversed by the administrative courts, the appeals or the Constitutional Court, the cycle of exhaustion of domestic remedies will take many more years and those cases will probably never be able to reach the ECtHR, or even their day in court.
Fourth, pursuant to Article 9 of KHK 685, “the Commission shall perform its examinations on the basis of the documents in the files,” which are out of reach of those dismissed. In absence of any knowledge on the entities or groups which were presumably designated by the National Security Council as being “terrorist organizations”, this fact alone wipes-out the opportunity of those dismissed to have any defense, let alone effective defense.
Fifth, the Commission is presumed to work and take its decisions on the basis of information and documents provided by the government, which can decide on a case-by-case basis which documents to disclose. Even if the government would be willing to disclose all relevant documents to the Commission – the later has no authority in reviewing classified documents. Since the dismissals have been argued on basis of terrorist affiliation which undermines, inter alia, national security – most of the documents that the government claims to have played a role in the dismissals, as state secrets, will be out of the reach of the Committee.
The Venice Commission, supporting the idea of an ad hoc body for the review of the emergency measures envisaged that “the essential purpose of that body would be to give individualized treatment to all cases. That body would have to respect the basic principles of due process, examine specific evidence and issue reasoned decisions. This body should be independent, impartial and be given sufficient powers to restore the status quo ante, and/or, where appropriate, to provide adequate compensation. The law should enable for subsequent judicial review of decisions of this ad hoc body. Limits and forms of any compensation may be set by Parliament in a special post-emergency legislation, with due regard to the Constitution of Turkey and its international human-rights obligations.”[12]
In conclusion, the State of Emergency Inquiry Commission will certainly not be able to meet the criteria foreseen by the Venice Commission and the standards adopted in the case-law of the ECtHR. The establishment of the Commission will only serve the immediate interests of the ECtHR and the government of Turkey, not the interests of justice and those hundreds of thousands of individuals. In addition:
The establishment of the Commission is expected to create much more serious consequences. Hundreds of thousands of individuals who have suffered injustice will turn to the ECtHR in several years later as the Commission will not provide any justice. By that time the government would have “acquired” between approximately two to ten years, maybe more. During the same time, hundreds of thousands of people will have suffered tremendously without any available remedy.
During this long period, the applicants not only will be condemned to a “slow death” – they will also continue to bear the label of ‘terrorist’. They shall not be eligible to work in public service and their social security records will show that they were dismissed by an emergency decree.
Based on the complicated procedures related to the Commission, it is expected that individuals who are denied the opportunity to challenge the criminal charges against them for an entire year, will wait before an administrative commission for years and then apply for an administrative judicial review, which, as explained above, has no power to remedy the situation. In short, this is undoubtedly a reversal of the presumption of innocence.

Rule of law in the country
Rule of law within the country has started to be weakened by the government’s policies. According to the World Justice Project’s Rule of Law Index,[13] Turkey was ranked among the worst 15 out of 113 countries, dropping 8 positions compared to the last year and trailing countries such as Iran, Russia, Guatemala and Myanmar.[14] The Index is calculated taking into consideration different crucial components such as “Constraints on Government Power, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice and Criminal Justice,” and Turkey’s scores are not promising in any of these. Moreover, consecutive reports prepared by the Venice Commission have been pointing out the problems regarding the rule of law. The Venice Commission has published detailed reports and opinions on the situation in Turkey most of which have common points. Especially after the attempted coup in 2016, measures taken in the country failed to meet the requirements of the rule of law such as necessity and proportionality. Additionally, the basic principle of separation of powers is under threat for a long time, risking the independence of judiciary.[15]
The three crucial components of what constitutes a fair trial, namely the defense, the prosecution and the courts, have all collapsed in Turkey in recent years, turning the judicial system into merely an extension of the political authority that thwarts an effective defense and appoints (or better employs) partisan and loyalist prosecutors and judges.
Dismissals of judges in particular have had an adverse and devastating effect on the Turkish judiciary, its independence and the effectiveness of the principle of separation of powers. In the current circumstances, when thousands of judges are detained and imprisoned (close to one-third of judges and prosecutors), it is inconceivable that the remaining judges could reverse any measure declared under the emergency decree laws out of fear of becoming subject to such measures themselves.
The U.S. State Department’s Human Rights Report in 2016 has explicitly asserted that the government’s applications have a “chilling effect on judicial independence” especially as regards the politically sensitive cases.[16] Likewise, the Human Rights Watch and Amnesty International have expressed their concerns that imprisonment and dismissal of officials jeopardize judicial independence, and moreover that new laws tying the judiciary to the executive poses a clear threat to the rule of law.[17] Both organizations are rightfully worried about the newly created appointment system of judges and prosecutors as well as recently established courts with power over politically sensitive investigations.[18]
Similarly, the International Commission of Jurists (ICJ) has indicated that the “selection and appointment process as a whole is highly susceptible to executive manipulation, and likely to be weighted against candidates who are not seen as supportive of the government.” The ICJ has also drawn attention to the criminal charges against judges and prosecutors and specified that many  officials from the judiciary were dismissed because their judgments were conflicting government’s interests. According to the ICJ this amount of interference with the judiciary is clearly against internationally accepted standards.[19] The International Commission of Jurists and other international organizations have determined that the independence of the judiciary has now been eroded to its core in Turkey.[20]
In December 2016, the Board of the European Network of Councils for the Judiciary (ENCJ) concluded that the Turkish High Council for Judges and Prosecutors (HSYK) no longer meets the requirements of the ENCJ, so as to ensure the independence of the Turkish Judiciary. The ENCJ General Assembly accordingly resolved to suspend, with no Council member voting against, the observer status of the Turkish High Council for Judges and Prosecutors (HSYK).[21]
The Parliamentary Assembly of the Council of Europe decided on April 25, 2017 to reopen the monitoring procedure in respect of Turkey until “serious concerns” about respect for human rights, democracy and the rule of law “are addressed in a satisfactory manner.”
The above concerns were also voiced by the former chief justice of the Turkish Constitutional Court, Hasim Kilic, who stated that  “Everybody knows the political views of judges and prosecutors, even in the remotest villages of the country. We cannot move forward with such a judiciary,” and he continued “The judiciary is not an instrument of revenge, it is not anyone’s tool to achieve their aims.”[22] Ergun Ozbudun, Professor of Political Science and Constitutional Law, also raised similar concerns when he commented on the proposed constitutional amendment (which was adopted through referendum afterwards) and said “What we have here is the weakening of legislation while the president, with full executive powers, forms a parliament under his influence.” Furthermore, Metin Feyzioglu, head of the Turkish Bar Association, stated that “This is a system that will finish judicial integrity and sovereignty,” reminding that half of the judges are to be appointed by the president.[23]
Nils Muiznieks, Council of Europe Commissioner for Human Rights as well remarked that independence and impartiality of judiciary have started to be eroded and must be redeveloped as soon as possible. He added that “it is in particular the role of the criminal judges of peace that is the most concerning, because these formations have transformed into an instrument of judicial harassment to stifle opposition and legitimate criticism.”[24]
The list of similar reports and statements raising above-mentioned concerns grows everyday thanks to the government’s new actions. In the light of all the above, one can conclude that the judicial system in Turkey has been weakened by the government’s actions, therefore; it is highly likely that judges cannot give verdict against the ruling party’s interests not to face different types of punishments including imprisonment.
There have been cases in the past where the European Court examined the cases substantially even though the domestic remedies were not exhausted, when it was believed that they were not available or not going to be effective. For instance, in Akdivar v. Turkey (1996) case the Court stated that the Court “must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”[25] Hence, merely having the domestic rules providing remedies to the victims is not seen as satisfactory by the ECtHR. We believe the current situation in Turkey as well falls into this category and warrants immediate action by the Court. Hence, the ECtHR should not reject cases on the ground that the applicants could have gone to the domestic authorities from which, with great deal of certainty they will not receive any effective remedy.


Download PDF File: EUROPEAN COURT OF HUMAN RIGHTS SHOULD RECONSIDER JUDICIAL INDEPENDENCE IN TURKEY BEFORE REFERRING CASES TO DOMESTIC AUTHORITIES

 

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