Protesting as a Terrorist Offense:
The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey
This is a comprehensive, extremely detailed (74-page) report that is well worth reading. It would be impossible to sum it up here in a thousand words, but below are some highlights of the report’s findings. The HRW report focuses on the prosecution of adults, but does include many sections about minors. This overview only touches on the parts relevant to adult cases.
Overall, it paints a grim picture of how Turkey uses its terrorism laws to prosecute and imprison protestors. Often these unarmed, peaceful demonstrators receive more severe sentences than armed members of the PKK who are tried under the same laws. The punishments are not for anything the protestors do, but rather for their perceived ideological support of the PKK. Kurds make up the vast majority of demonstrators currently being prosecuted under terrorism laws, and the laws are usually invoked in the mainly Kurdish-populated areas of southeast Turkey, and other cities with large Kurdish populations.
The requirement of legality under international human rights law and the rule of law is that offences must be defined precisely and in a foreseeable manner. Their arbitrary application as outlined in this report is a clear violation of these laws. Why? Because through the imposition of aggravated punishment under the Anti-Terror Law it criminalises the legitimate exercise of freedom of opinion, expression, and assembly.
Article 7(2) of the Turkish Anti-Terror law was the most frequently use vehicle for prosecution of protestors. However, the judiciary is now using Article 220(6), which is ‘committing crimes on behalf of the PKK without being a member of the organisation.’ 7(2) was merely ‘making propaganda’ on their behalf. These more serious charges have resulted in prison terms of between seven and 15 years.
The charges under Article 220(6) do not require ‘evidence’ by the prosecution. The courts have held that the PKK’s appeals to participate in these demonstrations have become so commonplace that they are now considered ‘continuous generic’ appeals. In other words, anyone demonstrating is assumed to have acted directly under PKK orders even if there has been no specific PKK appeal to the population or even any other evidence announcing such demonstrations.
This shift from 7(2) to 220(6) effectively erases any distinction between an armed PKK combatant and a civilian demonstrator. The report says that armed combatants ‘may receive partial amnesty under the “Effective Repentance” provision in the Turkish Penal Code, [but] there is no such provision to reduce the sentences of peaceful demonstrators who have never taken up arms.’ The result is that someone who spends a couple hours chanting pro-Kurdish slogans in a rally can end up serving more time in prison than an armed guerrilla who has been fighting against the state for years.
The lawmakers who amended the Penal Code and Anti-Terror Law, and the courts, most notably the Court of Cassation, have focused primarily on measures to enhance security, often at the expense of human rights. The pattern of prosecutions and convictions addressed in this report is a direct legacy of the conflict between the state and the PKK: vague and overly broad laws, and harsh, potentially discriminatory, implementation of those laws by Turkey’s Court of Cassation.
It is the laws that have established a basis for the problematic prosecution of demonstrators and for the high criminal sentences available and imposed in such cases. Demonstrators, if convicted under all applicable laws, can face up to 28 years in prison.
This works out as follows:
The charge of ‘membership in an armed political organisation’ under Article 314/2 of the Penal Code carries a five-to-10-year prison sentence. Then the Anti-Terror Law bears on the case, and its Article 5 provides that the sentence automatically increases by one-half, because the crime is also a terrorism offence. Any crime committed ‘on behalf of’ the PKK falls under Article 5 of the Anti-Terror Law because the PKK is listed as a terrorist organisation under Turkish law.
Additionally the defendant faces other charges for being in violation of the Law on Demonstrations and Public Meetings. The combination of charges, in theory, means that a defendant could face 28 years’ imprisonment or more, and an even higher sentence if there are multiple violations.
Lawyers interviewed in the course of the research for the HRW report indicated that they had witnessed a significant rise in the past two years in the number of prosecutions of demonstrators under articles 220 and 314 of the Turkish Penal Code.
The report has a lengthy section detailing several landmark cases against protestors, including Felat Özer, Veysi Kaya, Murat Işıkırık, three Dicle University Students Campaigning for the Right to Mother Tongue Education, and several other cases. Most are listed under the heading of Restricting the Rights to Freedom of Assembly and Expression, but other sections include Disproportionate Charges and Sentences, and Convictions Based Solely on Police Identification.
Turkey is party to a number of human rights treaties, including the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child, which by virtue of Article 90 of the Turkish Constitution, have the force of law in Turkey. These treaties guarantee freedom of expression and association, the rights to liberty and security, and due process rights with respect to detention and the criminal law, all of which Turkey is violating by its harsh practice of routinely detaining and prosecuting demonstrators on terrorism charges. Though these treaties have the force of law in Turkey, no authority—either the police, prosecutors or the courts—is taking these legally binding human rights obligations into account when confronting legitimate, public action in opposition to the state’s policies on treatment of the Kurdish minority.
Martin Scheinin, the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, after a visit to Turkey in 2006 expressed extreme concern over the situation, saying that articles were vaguely worded and lacking in clarity offering an individual no indication of how to regulate or limit conduct or about what is prohibited. The special rapporteur also stated in relation to Turkey: ‘Only full definitional clarity with regard to what acts constitute terrorist crimes can ensure that the crimes of membership, aiding and abetting and what certain authorities referred to as “crimes of opinion” are not abused for other purposes than fighting terrorism.’
Chapter Ten of the report looks at recommendations to the Turkish government, to the judiciary, to the police and prosecuting authorities, and to Turkey’s international partners, namely the EU and the US.
Please forward the report on to others who you think may be interested in learning more about human rights abuses in Turkey.
The full report (.pdf) can be downloaded here.