At a time when the AKP-MHP government was preparing to put pressure on social media, another exemplary decision came from the European Court of Human Rights (ECHR). The Court ruled that the fact that Turkey both sentenced and dismissed an imam from public office on the charge that he was making propaganda for a terrorist organization, whose identity is unknown, through the so-called call for violence, is in violation of both the freedom of expression and the principle of fair trial, as well as in violation of the European Convention on Human Rights.
One should note that the government’s attitude toward pressuring social media is quite strange! While the ECHR has repeatedly ruled that Turkey’s systematic and constant violations of freedom of expression are incompatible with its commitments within the framework of membership of the Council of Europe, the government still vehemently continue its never-ending search for new bans on social media.
A similar situation has taken place when the government continued to make legal arrangements that would legitimize its effort to bring civil society completely under its control. As a matter of fact, with a decree issued by the President at the end of last month, the State Supervisory Board (DDK), an organization subordinated to the President, has expanded its jurisdiction, which already extends into the civilian sphere, to include other non-governmental organizations. By the new amendment, DDK is granted to conduct supervision in “cooperatives, associations and all kinds of partnerships and affiliates of these institutions and organizations”, in addition to “public benefit associations” and foundations that are already in its jurisdiction. While this is a new development that confirms the oppressive tendency of the current government, it is clear that it is incompatible with Turkey’s membership of the Council of Europe and “international human rights law”.
In the past few days, we also observed that the government’s political moves to abuse religion as a tool to consolidate its own power has, again, occurred when the President started the new judicial year with the prayer of the President of Religious Affairs. This incident drew harsh reactions not only because it was an abuse of religion and undermined trust in judiciary, but also because it stood in stark contrast with secularism, a key constitutional principal of the Republic of Turkey.
On the political front, it seems that there is a strong possibility that a general election will be held sometime between autumn 2022 and April 2023. The AKP-MHP bloc has to hold the presidential and parliamentary elections ahead of time for two main reasons. First of all, it is constitutionally impossible for Tayyip Erdoğan to be a candidate for re-election in a regular election held in due time. On the other hand, the AKP-MHP bloc must hold the elections before it is too late since its electoral support is eroding day by day.
The fact that the decline in the MHP’s voter support fell below the national election threshold of 10% becomes an alarm for the ruling bloc. This is, indeed, alarming since it is by now certain that the AKP alone will not be able to win a majority in the parliament and have its own candidate elected for presidency. It is by this very reason that President Erdogan is trying to save his unofficial partner – and thus his own party as well – from its fate by proposing that the national threshold will be lowered to 7%.
In the meantime, it is noteworthy that while the government is trying to compensate the damage caused by its wrong foreign policy it has followed in recent years, as in the attempt to restore relations with Egypt, it seems that it is confused and hesitant about how to develop its relations with the Taliban government in Afghanistan. It is likely that Erdogan’s known ideological inclination, unfortunately, would lead him to develop its relations with the Taliban on the religious ground (fundamentalist Sunnism) rather than reason in determining the policy regarding Afghanistan.
See you in the next bulletin.
Election Threshold Will Be Lowered To 7 Percent, President Erdoğan Announced
President Erdoğan stated that they, as the People’s Alliance (Cumhur İttifakı), decided to the election threshold to 7 percent. The other partner of the People’s Alliance, MHP leader Devlet Bahçeli, also stated in his written statement that the 7% election threshold would add depth and vitality to the principle of “justice in representation”. Although Mr. Bahçeli has been known as a political figure who opposed the idea of lowering the election threshold in previous years, his advocacy of lowering the election threshold can be considered as a pleasing development for democracy. On the other hand, the main reason for the U-turn in Mr. Bahçeli’s attitude seems to be the rapid decline in the MHP’s voter support of around 7-8 percent in the election polls. It should be noted that the rate of 5 percent was first mentioned in the discussions over what the electoral threshold should be. However, it seems that the decision was made at 7 percent in an attempt to prevent the likely case that the newly formed parties with a low vote share could form an alliance and pass the threshold.
In parliamentary regimes, election thresholds are introduced in order to stabilize the executive branch. However, election thresholds have been used in a discriminatory manner in Turkey. As a matter of fact, Turkey is the country with the highest electoral threshold among democratic countries. The high electoral threshold, which is one of the anti-democratic practices inherited from the 1982 Constitution, has caused problems of fairness in representation in recent political history. What is more striking is that although Turkey has shifted into a presidential system since 2018, where the executive is now immune from the legislative majority, lowering the election threshold, let alone removing it completely, was not on the agenda of the government. With the 2017 referendum, the ruling party had invented a system that has no equivalent in the world. The system is based upon an institutional design that combined the rules of the parliamentary and presidential systems that strengthened the executive and reduced fairness in representation. In addition, the government had made a legal arrangement that ensured that the parties with the lowest vote rate in electoral alliance would not be caught in the election threshold if the total vote rate of the alliance exceeded 10 percent. Again, this change was made to ensure that the MHP would not be caught by the threshold and that the HDP would not pass the 10 percent threshold without forming an electoral alliance with any party. Although the decision to lower the election threshold from 7 to 10 percent is a positive development in terms of fair representation, it came about by the political calculations of the ruling party and its ally, rather than the outcome of a broad-participant public debate or a comprehensive democratic program.
The ECHR Decides Violation of Imam’s Rights due to Facebook Sharing
Criminal cases are filed and convictions are made in Turkey even for insignificant and ineffective posts on social media, which significantly disregards freedom of expression. While the government is working on amending the law to introduce new bans and restrictions on social media, the ECHR continues to issue violation decisions in the applications made by people who are subject to various sanctions for their social media posts. In its new decision announced on 31 August 2021, the ECHR decided that the freedom of expression was violated as the applicant, who worked as an imam in Diyarbakir, was punished for sharing two contents produced by others on his Facebook account in 2015 and 2016. One of the contents shared by the applicant included a photograph of two YPG members standing in front of the destroyed buildings. The second post contains a photo of a crowd of demonstrators standing in front of a fire set in the middle of a street and the following sentence: “If our brothers in Sur do not feel comfortable, neither can we. Everyone, share this for reaction if you can’t do anything, at least let everyone know.” The local court accepted that these two broadcasts were in the nature of a call for violence legitimized and encouraged a terrorist organization’s methods of coercion, violence, and threats. Therefore, the applicant was sentenced to one year, six months and 22 days in prison for making propaganda for a terrorist organization and decided to defer the announcement of the verdict.
In what followed, the applicant was dismissed from public service with a decree law during the state of emergency on the grounds that he had connections with FETÖ (Fethullahist Terrorist Organization). He was also dismissed from public service by the Disciplinary Committee of the Presidency of Religious Affairs for allegedly having links with the PKK (Kurdistan Workers’ Party).
The applicant filed an individual application to the Constitutional Court with the allegation that his right to a fair trial and freedom of expression were violated. The Constitutional Court, however, found the application inadmissible on the ground that the application was not filed in due time. Thereafter, the applicant applied to the ECHR on the grounds that his right to access to court and freedom of expression were violated.
The ECHR first examined whether the Constitutional Court’s decision to refuse the applicant’s individual application violated the applicant’s right of access to a court. The ECHR also noted that the refusal decision given on the objection against the decision to defer the announcement of the verdict was not notified to the applicant despite the court’s decision to the contrary. On the other hand, the government claimed that the Constitutional Court had applied its case-law that the decisions of the Court of Cassation that were not notified would be considered to have been learned at the latest three months after they were entered in the domestic court’s file. The ECHR stated that since there is no explicit obligation in the law, there is an established practice of not notifying the decisions of the Court of Cassation in criminal cases. However, the Court also noted that the decisions regarding the rejection of the objection to the decision to defer the announcement of the verdict are generally notified. The ECHR stated that the trial court did not notify the final decision to the applicant even though the court that examined the objection in the concrete case decided to notify the applicant. The court pointed out the fact that the applicant went to the trial court ten months after the appeal date and received a notification of the finalization decision by hand. Considering the local practices, the ECHR stated that ten months is reasonable in that Constitutional Court interpreted the time requirement for individual application in a very formal way without considering the specifics of the concrete case and violated the applicant’s right of access to court.
In terms of freedom of expression, the Court stated that the local court failed to demonstrate that the restriction on the applicant’s freedom of expression was necessary in a democratic society by stating that the two-content shared by the applicant on his Facebook account failed to show that the applicant praised, justified, or encouraged a terrorist organization’s methods of coercion, violence, and threats. Therefore, the ECHR ruled that the Article 10 of the Convention was violated.
On the other hand, two judges, who gave different reasons for the ECHR’s decision, argued that the Court’s procedural approach to the violation of freedom of expression was not sufficient in the present case, and that the complaints should be examined by the content and it should be determined that there was a fundamental violation of the freedom of expression. In other words, they stated that it is important to determine that the content of the applicant’s posts is within the scope of freedom of expression and goes beyond the procedural violation that the domestic courts’ failure to provide sufficient justification. This is important in order to prevent the unnecessary restriction of freedom of expression within the efforts to fight against terrorism. Another judge stated that the violation of the Article 6 should be based on the right to a reasoned decision rather than the right to access to a court.
Distrust for Turkish Lira Continues
According to the Banking Regulation and Supervision Agency (BDDK) data, foreign currency deposits increased significantly as of the week ending on August 27. After an increase of 4 billion 80 million dollars, the amount of foreign currency deposits rose to 259.4 billion dollars in total. Despite decline in dollar vis-à-vis Turkish Lira after increase in foreign currency deposits, we have seen in the data released as of September 2 that deposits in foreign currency again, rose to $261.6 billion. So, why is the value of foreign currency deposits still increasing in Turkey while the Turkish lira appreciates against the dollar and the US dollar depreciates against almost all emerging currencies? In other words, why do people still think that the Turkish lira has not gained ability to maintain its value? These are, indeed, crucial questions and they influence many economic decisions, including citizens’ confidence in the economy. Two important reasons stand out in explaining the emergence of this situation.
First, according to the data announced by the Turkish Statistical Institute (TUIK) on September 3, the Consumer Price Index, that is, consumer inflation, was 19.25% in August. This situation caused the real yields of deposit rates to turn negative. In other words, when a person living in Turkey puts their savings in banks, the real value of their money decreases. As we mentioned in our previous bulletins, there was already a certain distrust in the inflation accounts of TUIK. It was precisely for this reason that it was said, though implicitly, that deposit returns were lower than inflation. With this recently announced data, this has officially come true.
The second is the issue of interest rate cuts, which has come to the country’s agenda repeatedly. President Recep Tayyip Erdoğan does not hesitate to make statements that interest rates should be lowered whenever he finds an opportunity. After the depreciation of the dollar in the global markets, Erdoğan again put the issue of interest rate cuts on his agenda. However, in a country where foreign currency deposits are so high, that is, in a country where the demand for foreign currency is still not over, lowering interest rates may result in an appreciation of the dollar in Turkey.
DDK’s Jurisdiction of Supervision Extends into Cooperatives, Associations and All kinds of Partnerships and Affiliates of These Institutions and Organizations
The political pressure on non-governmental organizations has been increasing in unprecedented manner in Turkey. Following the Law No. 7262 on the Prevention of Financing the Proliferation of Weapons of Mass Destruction, the State Supervisory Board (DDK) will now be able to use the “authorities of the supervisory board” of professional organizations, associations, publicly beneficial associations, and foundations. Since July 2018, the jurisdiction of the DDK continued to be expanded by decrees. According to the decree dated 20 August 2021 published in the Official Gazette, a new one has been added to the DDK’s new supervisory powers. This change caused wide-spread reactions and discussions due to the deepening of state intervention in the sphere of influence of civil society.
According to the amendment in the Official Gazette, the previous phrase in the Article 2 “in associations and foundations” was changed to “associations, foundations, cooperatives, unions and all kinds of partnerships and affiliates of these institutions and organizations”. According to the statement in the next article of the decree, the DDK, affiliated to the Presidency, can use the powers of the supervisory boards of professional organizations, trade unions, publicly beneficial associations, and foundations.
CHP Mersin Deputy Alpay Antmen, inspections and supervisions are not necessarily harmful. However, he shed light on the pressing fact that the DDK aims to control non-governmental organizations and professional organizations with the quality of public institutions with the ‘control stick’ considering the fact that the supervision is concentrated at the hand of the President and the president is a party member.
According to Tezcan Karakuş, the head of the Ankara Branch of the Chamber of Architects, ” with the expansion of supervisory powers in the DDK’s jurisdiction, the presidential government system puts pressure on the active elements of social opposition, such as professional organizations, foundations and associations, and led them to be supervised with one-man authority.”
Sedat Durna, Member of the Board of ÇYDD, points out the fact that introduction of this regulation, through which the auditors sent by the DDK will have the authority of the audit units of associations, raises concerns about an unusual approach to supervision. Moreover, the auditors that have the duty of supervision will have the right to access all kinds of information and documents (open or secret) as well as carry out “other works” mandated by the president. The fact that the DDK is granted the powers of the supervisory board of an association also means that the DDK can also request an extraordinary general assembly, it stands in violation of the right to establish and manage associations set out in the Article 33 of the Constitution.
When being added on top of the current political pressures on civil society in Turkey, the Law No. 7262 on the Prevention of the Financing of Weapons of Mass Destruction and the DDK’s new supervisory powers, it has become inevitable that Turkish civil society and participatory democracy culture will suffer greatly.