From Editor-in-Chief

The multi-faceted regression process that we have been going through for a long time has finally dragged Turkey into a deep crisis from which it is almost impossible find a way to get out. As the crisis deepens, new problems come one after another as demonstrated by the tragic events we have witnessed in the last week.

The first bad news came when the European Union Commission announced its “Progress” Report on Turkey. As expected, far from advancing in almost all EU accession criteria – human rights and democratization, rule of law and judicial independence, suppression of civil society, politicization of public administration and improvement in market economy – Turkey has regressed further in all these aspects. On top of that, the continuation of the expansionist foreign policy stands out.

The Progress Report also triggered for other bad news. As a matter of fact, Turkey was on the “grey list” of the Financial Action Task Force (FATF) within the OECD. In other words, Turkey has not been “successful” in preventing money laundering and terrorist financing as stated ‘courteously’ by the FATF. On the contrary, instead of making regulations in line with the recommendations of FATF, the government preferred to make legislation to put pressure on non-governmental organizations under the pretext of anti-money laundering regulation as we pointed out in an earlier Bulletin. Meanwhile, by avoiding the make regulations for auditing  financial resources of the politics, Turkey, in a way, has officially registered the existence of political corruption.

Of course, examples of political corruption are not limited to this latest incident. Another example emerged due to the TÜGVA incident, or rather the ‘scandal’, that broke out last week. Documents shows that TÜGVA, headed by President Erdoğan’s son Bilal Erdoğan, placed its staff and relatives in various levels of the state (possibly including the judiciary) through favoritism. The documents revealed that TÜGVA-affiliated staff went into a parallel restructuring within the state apparatus. Although this patronage relationship is particularly worrisome due to Bilal Erdoğan’s identity, we already know from previous events that there are other religious groups organized within the state by making use of such relationships.

The judiciary had also its share from the overall corruption of the politics. In addition to many previous examples, the scandal that took place last week when a member of the Board of Judges and Prosecutors (HSK)– the Board, which is supposed to be the guarantor of the so-called independence of the judiciary – resigned upon the request of Devlet Bahçeli is worth noting. What especially adds to the gravity of the incident is that the HSK member in question referred to Devlet Bahçeli as “our chairman”.

We have touched upon in our previous Bulletins that the Committee of Ministers of the Council of Europe warned about Turkey to initiate the “violation procedure” envisaged in the Convention since Osman Kavala, who had been unjustly detained for four years, was not released despite the insistent decisions of the ECHR. Despite the last warning of the Committee of Ministers at its meeting last June, the fact that Kavala was still not released caused another reaction from the Western world. Alongside the USA, the ambassadors of 9 states, most of which are members of the Council of Europe, made a statement calling on Turkey to release Osman Kavala. This event led to a rather short-lived tension and diplomatic crisis. Although President Erdoğan threatened to declare the ambassadors in question “persona non grata” due to their warning, which he saw as an intervention in Turkey’s internal affairs, this irrational approach, fortunately, was abandoned at the last moment.

Another incident took place this week that showed that Turkey is not willing to give up its expansionist foreing policy as implied in the EU Commission report. The government succeeded in passing the Bill, which extended the mandate of the Turkish military units in Syria and Iraq for two more years, with the help of the opposition.

Below you will find details of other highlights of the past week.

TÜGVA Papers

On Tuesday October 5th , the Istanbul Metropolitan Municipality wanted to evacuate the representative office of the Turkish Youth Foundation (TÜGVA). In response, TÜGVA attempted to prevent the evacuation, although the municipality had the court order for such an end. There was a lot of discussion about the tension between the police and the constabulary officers. The fact that the police took the side of TÜGVA, despite the court decision, attracted a lot of attention in the public, as it showed the highly close relationship between foundations and associations close to the AKP and state institutions that should be impartial.[1]

The ongoing debate about the extremely close relationship between TÜGVA and state institutions flared up again last week with a report revealed by journalist Metin Cihan. According to the documents that Metin Cihan published that he claimed to have received from a former employee of TÜGVA, people who want to be appointed to public offices contact with TÜGVA. In return, TÜGVA provides these people with the necessary references to easily pass the interviews and make their appointments. Metin Cihan shared with the public the documents containing the names of hundreds of public officials working in many institutions.[2] Cihan, who also published many WhatsApp correspondence that allegedly took place between young job seekers and people working at TÜGVA, stated that TÜGVA’s activities point out to efforts to build a parallel state.

Patronage relations and nepotism practices of TÜGVA and many foundations and associations of similar character pose irretrievable threats to the future of Turkish democracy and bureaucracy. First of all, it shows how nepotism in public appointment has actually become a common norm that people have already aware of with more individual experiences or information circulating from ear to ear. Secondly, it shows how the KPSS exam, which approximately one and a half million people took for the purpose of becoming public personnel, was left unfunctional during the interview phase, where nepotism practices actually take place. This, inevitably, leaves hundreds of thousands of people to unfair competition. Perhaps most importantly, we are faced with the problem of private interest groups taking over government institutions.

The European Court of Human Rights Decided that the Provision Regulating the Offense of Insulting the President is Incompatible with the Convention

Based on the Article No. 299 of the Turkish Penal Code (TCK), which has become one of the main instruments for the restriction of freedom of expression in recent years, tens of thousands of investigations are launched and thousands of people are sentenced on the grounds of insulting the President.[3] In its decision on Vedat Şorli, published on 19 October 2021, the ECHR decided that the applicant’s freedom of expression had been violated due to the 11 months and 20 days prison sentence he was given for insulting the President because he shared a cartoon and a caption on his Facebook account.[4] According to the established case-law of the Court, the protection of heads of State against insult by special laws is incompatible with the Convention as recalled by the ECHR. The Court also emphasized that the applicant’s arrest for two Facebook posts and his sentence to imprisonment, although not executed, was disproportionate. Stating that the Article No. 299 of the TCK, which stipulates a prison sentence for up to four years, is incompatible with the spirit of the Convention, the Court decided that the violation in the context of the Article No. 46 of the Convention can only be remedied by amending or repealing this provision.

While in the context of the implementation of the Artun and Güvener/Turkey decision ECHR has already invited the government to abolish the Article No. 299 of the TCK[5], with the decision of Şorli, the abolition of the crime of insulting the President has become a necessity. Although it is not implemented, the provisions in some European penal laws that impose more severe sanctions on insulting the head of state are seen by the ECHR as contrary to the spirit of the Convention.[6] Despite this, in the norm review decision of the Constitutional Court in 2016, the Article No. 299 of the TCK was not found unconstitutional and cancelled.[7] It is striking to note that the Constitutional Court made no reference to the case-law of the ECHR in the said decision. Likewise, as stated above, despite thousands of convictions, the Constitutional Court did not decide on any violation decision for a very long time regarding the individual applications made by those convicted under the Article No. 299 of the TCK. Yet, the Court announced three violation decisions in the last month.[8] It should also be noted that the Constitutional Court found Vedat Şorli’s individual application inadmissible on the grounds that the violation could not be proved by the applicant.[9] The Şorli decision shows that the Constitutional Court is far from the ECHR case-law  in protecting freedom of expression.

A Member of the HSK Announces Resignation Upon a Request of a Political Party Leader

Hamit Kocabey, a member of the Board of Judges and Prosecutors, recently announced that he has resigned from his post. Mr. Kocabey, who did not give any reason in his resignation petition, later announced that he took the decision to resign as a result of consultation with MHP leader Devlet Bahçeli.[10] His statement, indeed, sparked a heated controversy. Mr. Kocabey, who previously served as the lawyer of Bahçeli and the MHP, was elected as a member of the HSK by the Grand National Assembly of Turkey in 2017 and 2021. The statement in question raises doubts about the independence of the members of an institution that should be the guarantor of the independence of the judiciary. In addition, the statement, which gives the impression that HSK member Kocabey feels attached to the leader of the political party, shows that the contribution of the quota given to the Grand National Assembly of Turkey in the election of members to the judiciary boards to the independence of the judiciary is questionable.

An Obsessive Love Story: TRY-USD

From the first bulletin onwards, the main task I carried out is to identify Turkey’s democratization problem. Economics, law, politics all referred to the different aspects of democratization problem. Looking at all that has been written creates a feeling of despair. This is because that no matter how rationally and liberally you try to approach to the main issues with democratization, the fact that there is an understanding on the government side that persists in its wrongdoings.

As an economist, I shed light on what could be labelled as an ‘obsessive love story’ between TRY and USD in this bulletin. When we look at the course of the dollar since the day when Berat Albayrak, the son-in-law of Recep Tayyip Erdoğan, became the Minister of Treasury and Finance, we can see how the relationship between the two currencies has turned into an obsession. On July 10, 2018, when Albayrak was a minister, 1 US dollar was traded as 4.7 TL.[11] When we came to October 24, 2021, the TL equivalent of 1 US dollar was 9.75 TL. In other words, in a short period of three years, the dollar appreciated almost 100% against the Turkish lira.[12] In this case, of course, the international conjuncture working against the developing countries had an effect. However, many developing countries did not experience such a meltdown. The Turkish lira often diverged negatively from other emerging market currencies. In other words, we created the crisis we are experiencing with our own hands. This crisis fully fits the definition of a “homemade crisis”.

So, what happened in this whole process so that the TRY-USD relationship turned into an obsessive love story? First of all, Turkey switched to a pejoratively unique presidential system, unlike any other presidential system. Afterwards, Albayrak tried to manage the Central Bank, which was supposed to be independent, together with the Ministry of Treasury and Finance. Almost all of the competent people in Turkey’s economic institutions either lost their jobs or regressed into passive positions. In this process, the Ministry of Finance reached at a point where it could not even prepare the budget- that is- its main job. The Budget Law could not be brought to the Parliament within the time specified in the Constitution. Even this situation is the most vivid example of how institutions in modern Turkey have collapsed. Then, a constant pressure was applied to the Central Bank to reduce interest rates. President Recep Tayyip Erdoğan said that interest rates should be reduced at every opportunity. As he said it, the Central Bank’s hands were tied. In the last two Monetary Policy Committee meetings, interest rates were cut by 100 basis points and then 200 basis points. Then, the Turkish lira started its journey from 8.4 to 9.75 against the US dollar. In this process, Albayrak and three central bank governors were dismissed from their positions. But the things that remained constant were President Erdogan and the bad legacy he would leave to the Turkish economy.

The way this process is managed, or rather could not be managed, is the reason why this relationship has turned into an obsession. Namely, every time the Turkish lira depreciates against the dollar, there are statements from the government wing emphasizing that the depreciation is indeed beneficial to increase exports and in that this is done deliberately. When the Turkish lira appreciates, the rhetoric comes into play and statements are made that the ‘external games’ played on the country have been eliminated. This inconsistency both damages confidence in the Turkish lira and prevents it from being a solid currency to hold. As we come to an end in our newsletters, I wish we were in a better place than where we started. But the struggle for freedom is an area that has always witnessed constant ups and downs. That’s why I prefer to be hopeful.

Turkey was Put on the ‘Grey List’ by Financial Action Task Force (FATF) for Failing to Prevent Money Laundering and Financing of Terrorism[13]

After the draft Law on the Prevention of Financing of Weapons of Mass Destruction, which went into force in December 2020, and its publication in the Official Gazette, some debates arose about the content of the law. the Financial Action Task Force (FATF) within the OECD frequently emphasized all countries that it proposes to prevent money laundering, the spread of terrorism and weapons of mass destruction, and their financing. It has been claimed that if Turkey does not implement the FATF recommendations, there is a possibility that it will be included in the Gray List created by this institution, and that this law has to be implemented accordingly. However, before the proposal was enacted, the criticisms that no regulations were made on money laundering in line with the FATF recommendations, which experts frequently emphasized, and that all the regulations were made as an excuse to increase the state pressure on civil society, were ignored by the lawmakers.

However, as of October 2021, Turkey will be put on the ‘grey list’ for failing in preventing money laundering and financing of terrorism by the (FATF). The FATF will endorse this decision at its meeting in Paris on October 21. With the decision, it is stated that foreign capital investments that Turkey is currently struggling to attract to the country may decrease even more. According to the information received, FATF recommended Turkey to be placed under special monitoring by the International Cooperation Review group. Also known as the gray list, this group includes countries such as Albania, Morocco, Syria, South Sudan, and Yemen. While it was stated that FATF board, which has 39 members, would most likely follow the recommendation, some sources stressed that this approval would be just a formality. The gray list actually stipulates that the countries covered by the FATF are subject to increased monitoring. The FATF states that a gray listed country is committed to addressing its strategic shortcomings at the appointed due time.

Among the FATF recommendations, the most important ones were those made for “Politically Exposed Persons (PEP)”. The FATF envisioned the establishment of mechanisms to better monitor the assets of these individuals and measures to prevent them from using their political power for wealth creation. However, there were no measures regarding these issues in the draft law that the government brought into the parliament. Despite these shortcomings, it was understood that the FATF and the OECD did not carefully consider the law in question. Despite the risk of being put on the grey list, the government and politicians made clear their unwillingness to reveal their sources of wealth for inspection. However, the pressure that the Law put on non-governmental organizations by using the money laundering threat as an excuse became permanent. As opposition NGOs began to be overwhelmed by threats of inspection and increased administrative burdens, it was officially understood that the law had no ties to the FATF recommendations on which it was allegedly based.

When the articles of the law are examined, it is seen that it has a content that directly extends to NGOs and can be interpreted in line with the desire to take control of the NGOs’ activities by the state institutions. Regarding to the Law, questions can be asked as follows:

1- First of all, we can start by defining what is civil society, what is the civil sphere, what is its importance in our democratic rights and democratic order. What exactly are we to understand from being independent from the state as a civil society?

2- What loss will the narrowing of the field of activity of civil society bring for us in the long run, and how deeply will the disruption of the check and balance mechanism affect our lives?

3- After clarifying the importance of the organization and activities of civil society, we can move on to the content of the Law on the Prevention of the Financing of Weapons of Mass Destruction. First of all, we see an Omnibus Bill in the domestic legislation that includes new regulations, especially regarding the activities of associations and foundations. In this context, we see an emphasis on financing of terrorism, drug trafficking and money laundering. Depending on these, can we say that making it easier for launching  an investigation paves the way for the expansion of supervision for NGOs?

4- In the same way, after the courts have definitively decided that institutions, organizations, persons are affiliated to terrorist organizations, the Minister of Treasury and Finance and the Minister of Interior may decide, upon the recommendation of the Evaluation Commission, to freeze all the assets of persons, institutions, and organizations in Turkey. We can say that the terrorism criterion, whose expressions are left ambiguous, leads to uncertainty about which activities will be connected. What can this ambiguity tell us in terms of the purposes of the current government?

5- Apart from the ambiguity and flexibility in interpreting the concept of terrorism, the violation of our constitutional rights, the restriction of a person convicted as a result of the aforementioned investigations from working in decision-making bodies in NGO activities point out that we are witnessing a form of witch hunt as the Turkish civil society?

6- An important part of NGOs receives funds and donations from local or foreign institutions and organizations. In the last law, funds are also included in the definition of assets. Could it be the case that controlling both the funds of the associations on the pretext of transparency may lead to the cancellation of some funds or making it difficult for the associations to find funds anymore? For example, when a foreign organization contacts an association in Turkey via e-mail to send funds, can this chain of investigations also extend to foreign organizations? And in such a case, could it cause them to abstain from funding the associations in Turkey?

7-Since the government took power in 2002, how can we evaluate its relationship with NGOs? Were there any early events that heralded where we are today? What could have we done? Where could have we missed?

8- Can we also claim that NGOs are insufficient to make their voices heard regarding to the current regulation? Is it possible for us to criticize ourselves at this point?

9- Can we claim that the situation we are in is a completely hopeless case? Do you see that we are able to cope by adapting to obstacles, or do you have an assessment of how to tackle them? What should the relationship between NGO and government be in an ideal situation?

10- From a legal perspective to what extent can we claim how compatible this law is with the resolution published by the United Nations, and how compatible it is with international law and the constitution? And is it possible in practice to say that the Law in question has been removed from its intended context and turned into a law to pressure NGOs? (European Convention on Human Rights Article 11, Constitution Article 33)

11- Based on which articles can we state that it paves the way for the appointment of trustees to associations?

12- In case of launching an investigation, association officials can be dismissed and a trustee can be appointed within the authority of the Ministry of Interior. However, in this law, it seems possible that the activities of the association can be suspended or the relevant body can be dismissed even if only an investigation is launched. Is it not a violation of the presumption of innocence when the Law does not necessitate to wait the investigation to be concluded?

13- Is it also the case that audits that can be carried out by any civil servant may lead to problems in terms of transparency and the execution of an objective process?

14- Can the new law be considered as a declaration of the AKP government in its failure to establish cultural hegemony? In fact, is the increasing prevalence and intensity of oppression sufficient enough for non-governmental organizations to declare that we are now drifting from authoritarian conservatism to neo-fascism?


[1]https://www.bbc.com/turkce/haberler-turkiye-58820808

[2] https://www.dw.com/tr/t%C3%BCgva-belgeleri-tart%C4%B1%C5%9Fmas%C4%B1/a-59496193

[3] According to the Judicial statistics of 2020, the number of files that have been decided by the Public Prosecutor’s Office in a year under Article 299 of the Turkish Penal Code is 31,297. In the same year, 8769 lawsuits, 3325 convictions, 1335 acquittals, 3385 decisions to defer the announcement of the verdict were filed. See. Justice Statistics 2020, p. 60, 97, 111 et al. https://adlisicil.adalet.gov.tr/Resimler/SayfaDokuman/1692021162011adalet_ist-2020.pdf. Until the end of 2019, when Erdoğan became President, 128,872 judicial investigations and 30,708 judicial proceedings were carried out under the same article.

https://ifade.org.tr/reports/rule9/IFOD_Rule9_Pakdemirli_Submission_TR.pdf

[4] Vedat Şorli/Türkiye, no. 42048/19, 19.10.2021, http://hudoc.echr.coe.int/eng?i=001-212394

Decision “CM/ResDH(2021)110” taken at the 1406th Meeting of the Deputy Ministers on 9 June 2021.

[5] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=0900001680a2c296

[6] Colombani ve Diğerleri/Fransa, no. 51279/99, § 68, ECHR 2002-V; Artun ve Güvener/Türkiye, no. 75510/01, 26.07. 2007, para. 31; Önal/Türkiye (no. 2), no. 44982/07, 02.07.2019; Otegi Mondragon/İspanya, no. 2034/07, 15.3.2011; Stern Taulats ve Roura Capellara/İspanya, no. 51168/15, 13.03.2018.

[7] E: 2016/25, K: 2016/186, 14.12.2016

[8] Diren Taşkıran, B. No: 2017/26466, 26/5/2021; Şaban Sevinç (2), B. No: 2016/36777, 26/5/2021; Yaşar Gökoğlu, B. No: 2017/6162, 8/6/2021.

[9] Vedat Şorli/Türkiye, no. 42048/19, 19.10.2021, para.12.

[10] https://twitter.com/Nzmddnkocabey/status/1449024102178689052

[11]https://www.tcmb.gov.tr/wps/wcm/connect/en/tcmb+en/main+menu/statistics/exchange+rates/indicative+exchange+rates

[12] https://www.tcmb.gov.tr/wps/wcm/connect/en/tcmb+en/main+page+site+area/today

[13] https://www.ft.com/content/74ff270e-6f1d-489f-802b-cd9b36c86fa3

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