From Editor-in-Chief
As expected, the Council of Europe decided to operate the “violation procedure” stipulated in the Article No. 46 of the Convention at its 30 November-2 December meeting as Turkey did not fulfill the requirements of the “European Convention on Human Rights” decision on Osman Kavala. At the end of this process, Turkey may face serious sanctions such as restricting the right to vote within the Council of Europe and even expulsion from the Council.
The decision of the Council was, indeed, expected since, as it will be remembered, the European Council warned Turkey several times before, and the Committee of Ministers required Turkey to fulfill the Kavala decision until 30 September at its last meeting in June. The Council was, at the time, also stated that it would otherwise initiate a “violation procedure”.
This decision of the Committee of Ministers points out an utmost foreign policy and even a political regime issue that Turkey has faced in recent years. It is, indeed, because that it seriously jeopardizes the sincerity and reliability of Turkey’s commitment to international obligations for respect for human rights. Moreover, this decision may adversely affect Turkey’s relations with the European Union and the countries of the Union. The fact that this creates a sheer “regime problem” for Turkey beyond a mere foreign policy issue has a clear-cut legal basis: The Constitution itself defines that “The Republic of Turkey is a democratic … state governed by rule of law, … respecting human rights (art. 2)” and “democratic … Republic based on human rights (art.14)”.
The statement made by the Ministry of Foreign Affairs in response to this decision that blames the institutions of the Council of Europe compels us think that the Turkish government is unfortunately not aware of the seriousness of the situation. Let us note this for now that even more difficult days are ahead of Turkey, which is already struggling with massive problems in many areas, especially in the economy.
In fact, not a day goes by where we do not come across new examples showing that Turkey’s stance on the Osman Kavala decision is no exception. As a matter of fact, in a decision on November 21, the European Court of Human Rights (ECHR) decided that Turkey had violated the Convention. This, however, should not be regarded as an ordinary matter as it is directly related to the independence of the judiciary. In this latest violation decision of the ECHR, it is determined that hundreds of judges, including members of the high courts (Court of Cassation and Council of State) were detained unlawfully after the failed coup attempt in 2016.
On the other hand, the way in which a legit political struggle is carried out in Turkey has dramatically slide back from the standards of civilization in recent years. The latest example of such dramatic phenomenon was the raid of a meeting by a group, included some of the official MHP officials, and the law enforcement’s turning a blind eye to the attackers. Worse still, the MHP leader blamed those who were attacked instead of condemning the aggressors, while threatening the Mayor of Ankara Metropolitan Municipality, a former member of his party. Unfortunately, this is not the first “incident” in which the MHP has been involved in such attacks and threats, or even led by them. Since the MHP is the unofficial partner of the government, no investigation could be launched against MHP or MHP members.
In one of the previous issues of the Bulletin, we announced that the Financial Action Task Force (FATF) within the OECD put Turkey on its “grey list” because the country failed to prevent money laundering and financing of terrorism. We previously stated that the actual reason behind FATF’s decision was that the Turkish government preferred to enact laws aimed at suppressing non-governmental organizations under the excuse of preventing money laundering, instead of making regulations in accordance with the recommendations of FATF. As a matter of fact, a survey and interview conducted by Amnesty International Turkey Office revealed that Law No. 7262, which was enacted to prevent so-called money laundering, has a deterrent effect on civil society. This Law actually aims to prevent non-governmental organizations in Turkey from getting in contact with the international non-governmental network and from receiving foreign funds.
This is not a surprising move for a government when considering that the government presents to its own people the countries and organizations with which it is in solidarity with them on various issues, especially security, as malicious “external forces” trying to destroy Turkey…
MHP Leader Devlet Bahçeli Threatens Ankara Metropolitan Mayor Mansur Yavaş
During the commemoration ceremony organized by the Alparslan Türkeş Foundation on Sunday, November 28, a group of 50 people stormed the hall and attacked many people at the ceremony. Among the attackers, MHP Ankara Provincial Chairman Turgay Baştuğ stood out as the key figure. Before the ceremony, Baştuğ said, “The Ülkücüler(MHP’s official organizational support base) will never accept that those who trample our sacred values, betrayed our party and our Chief Alparslan Türkeş as well as our Leader, Mr. Devlet Bahçeli”.[1] It is claimed that although the police were at the entrance of the hall where the attack took place, they did not prevent the attackers and allegedly ignored them. It should be noted that no investigation has yet to be launched into the incidence.
Let alone making a statement that would call for calm and peace and condemn this attack and punish those responsible, Mr. Devlet Bahçeli made a statement that would further trigger violence. In his statement, Mr. Bahçeli said that “From now on, Mansur Bey should be careful. Now there is Ülkücüler’s breath behind him.”
It is hardly to judge Devlet Bahçeli’s threat against Yavaş as an ordinary daily polemic, especially when considering that the attacks against politicians have increased in recent years and that the government and its allies have encouraged violence, let alone disapproving it. The fact that the political polarization has reached at the point where the leaders threaten each other poses a great threat to Turkish democracy. It should be remembered that the history of Turkey is full of events that show how the country was dragged into the spiral of violence as a result of politicians threatening each other.
European Court of Human Rights Decides that 427 Judges and Prosecutors Have Been Arrested Unlawfully
In its decision on Turhan and Others v. Turkey[2], announced on 21 November 2021, the European Court of Human Rights (ECHR) combined and examined the individual applications of 427 judges and prosecutors who were arrested on charges such as attempting to overthrow the government, attempting to overthrow constitutional order through force, and membership of a terrorist organization after the coup attempt of 15 July, and found that the arrests were unlawful. The Court has determined that the detention of judges, some of whom serve at the courts of first instance and some at the Court of Cassation and the Council of State, without complying with the investigation procedure stipulated in their special laws, constitutes an unlawful interference with the right to freedom and security guaranteed by the article no. 5 of the Convention. The ECHR stated that the jurisprudence of the local courts, which states that the crime of membership in a terrorist organization is a continuous crime and that it will constitute a state of flagrante delicto at any time, therefore, it can be investigated directly by the prosecutor’s office and applied to protective measures without following the special procedures specified in the laws, is unpredictable. The Court also stated that the decisions of the Court of Cassation and the Constitutional Court to the contrary were also incompatible with the Convention. Thus, the ECHR disregarded the thesis of the Court of Cassation[3] and the Constitutional Court[4] that the national courts had the authority to interpret domestic law. Referring to its previous decisions on this issue[5], ECHR insisted on the view that the application of the Court of Cassation’s interpretation of continuous crimes by extending it to the flagrante delicto is an unpredictable interpretation and contrary to the principle of the legality of interference with the fundamental rights required by the Convention. The very conflict of Turkish high courts with the ECHR, even on a crucial subject such as the principle of legality that forms the basis of the rule of law, is one of the dramatic indicators of the erosion that Turkey has experienced in the field of rule of law in recent years.
On the other hand, the ECHR did not examine any of the other complaints of the applicants regarding to their detention. This seems to be an important reason for the decision to be taken before the Grand Chamber. The Court tried to explain the reason for not examining other complaints with heavy workload. This attitude of the Grand Chamber is hard to understand. The Court’s claim to set the European common standard and protect European values will be seriously questioned if the Court finds a violation in one subject and closing the case without examining the other allegations of violations where 427 judges and prosecutors in a country claim that they have been deprived of their freedom in violation of the guarantees in the Convention and make claims of many different violations. A workload concern should not be an excuse for ignoring the rule of law. Moreover, while practices that seriously harm the rule of law in Turkey are widespread, the ECHR’s dismissal of the applications due to workload concerns and the fact that it has not used the means at its disposal to stop violations in any matter (such as the pilot decision procedure) does not comply with the establishment purpose of the Council of Europe and the reason for existence of the Court. This issue is crucial when considering the fact that the Council was established after the disasters of fascism and Nazism so that Europe would not surrender to such oppressive regimes again. When countries dramatically backsliding into authoritarian regimes, the organs of Council and the Court should not leave individuals to their own fate under the authoritarian regimes. While evaluating Turkey’s record of violations of rights in recent years, ECHR’s contribution to these violations with the decisions made or not should, indeed, be taken into consideration.
A Stormy Year for Turkish Lira
It was obvious from the beginning of the year 2021 that Turkey would face many difficulties in its economy. Indeed, the year 2020 passed with the economic difficulties brought about by the COVID-19 pandemic. Long-term closures put both industrialists and workers in a lot of trouble. We are still suffering from the severe problems caused by the interruptions in global supply chain systems. But most of us did not think that we would face such an à la Turca crisis.
The US dollar, which was around 7.35 TL at the beginning of the year, is currently around 13.65 TL. Already at the beginning of the year, the dollar had increased excessively. The economy faced a much severe crisis than what happened after President Erdoğan’s son-in-law Berat Albayrak was appointed as the Minister of Treasury and Finance. In the 14 months that have passed since these bulletins began to be written, the Turkish economy has been subjected to two exchange rate shocks. A developing economy like Turkey with a high current account deficit and FX-denominated private indebtness has suffered from these two major crises in such a short time.
During Berat Albayrak’s term, an erratic interest rate policy was followed. First of all, the policy rate ceased to be a tool to stabilize exchange rate. Secondly, the Central Bank began to fund the markets through another tool called the ‘late liquidity window’. As a result of this confusion, the dollar hiked to 8.5 TL. In response to sudden jump in the exchange rate, the Central Bank was trying to stabilize exchange rate by selling the dollars in its reserves. However, the public learned by experience that this inefficient move did not do anything but melt the Central Bank reserves. After the eventful resignation of Berat Albayrak, Naci Ağbal, who was relatively a reliable figure, was appointed as the Governor of the Central Bank and Lütfi Elvan was appointed as the Ministry of Treasury and Finance. As a result of the short-term prescriptions of these two, the dollar, which was close to 8.5 TL, quickly declined to 7.3 TL. Indeed, since these prescriptions included interest rate hikes and required various monetary and fiscal tightening, they also caused concerns in which monetary and fiscal tightening would cause a slowdown in the economy. After all, Naci Ağbal’s presidency did not last long after all this interest fight and he was dismissed from his duty as the governor of the Central Bank after a period of 4 months.
As no lessons were learned, many different opinions began to be expressed more strongly. Erdogan began to repeat his rather odd view, which he had summarized for years as “interest is the cause, inflation is the result”, at every opportunity. He tried to silence everyone who criticizes his view with highly undemocratic. In summary, Erdogan decided to try again the “Chinese type of development” model, which is based on the three pillars ‘low interest rates-weak domestic currency- high export volumes- with an Islamic sauce. He left behind the pragmatic stance he had previously taken and said, “There is an Islamic rule on interest rate issue”, which is regarded as forbidden.[6] In his statement on November 17, he also stated that “Our friends who defend interest should not take offense. I cannot and will not be with those who defend interest. As long as I am in this position, I will continue on my fight against interest until the end, and I will continue on my fight against inflation.” While making this statement, Lütfi Elvan, the Minister of Treasury and Finance, was at the target. As a matter of fact, we learned in the Official Gazette of December 1 that Lütfi Elvan resigned, leaving his post to Deputy Minister Nurettin Nebati, another staunch defender of Erdoğan’s economic views.[7]
When looking at the statements of current economic actors, it is obvious that the days ahead of the Turkish economy will be highly similar to the management of the economy under the rule of Berat Albayrak. The heads of the economy did what they would have expected to do again and caused to a “home-grown crisis” in the history of the Turkish economy.
The Survey on the Effect of the Law No. 7262 On Non-Profit Organizations
Based on the recommendations of the Financial Action Task Force (FATF) operated under the OECD in 2019, Law No. 7262 was put into effect in December 2020, which includes heavy audit obligations for non-governmental organizations, burdensome prison sentences to be imposed if the obligations are not fulfilled, and high amounts of administrative fines that may lead to the dissolution of associations.
Amnesty International Turkey Office has reported the results of a survey sent to approximately 230 non-profit organizations and interviews with organization representatives on the effects of Law No. 7262.[8] Survey and interview results reveal that although the law has not been fully implemented yet, it has a deterrent effect on civil society.
According to the standards of international human rights law, freedom of association does not only include “the ability of individuals or legal entities to form an organization and become a member of an organization; it also includes their ability to request human, material and financial resources from local, foreign and international sources, to receive and use these resources” As is known, states have a positive obligation to facilitate the use of these rights, as well as a negative obligation in the provision of rights and freedoms. According to Laurent Pech, Professor of European Law, deterrent effect is the fear of being subjected to official government actions that have a negative impact on natural or legal persons and may result in sanctions or unofficial consequences such as threats, attacks, or smear campaigns. It could be a state action that causes them to give up their use of rights. According to Prof. Pech, there are three main points that reveal the desire of a state to create and maintain a deterrent effect. These include 1-) deliberately adopting vague legal regulations, 2-) applying these regulations to those who criticize the authorities in an arbitrary manner, and 3-) introducing disproportionate sanctions that will discourage individuals from exercising their rights.
Law No. 7262, unfortunately, satisfies all three conditions mentioned above and creates a climate of self-censorship for civil society even before it is fully put into force. In addition to the fact that the vague provisions of the law do not comply with the principle of legality, the lack of certainty of the authority that would carry out the audit is among the criticisms. All of the recently audited organizations noted that the authorities did not share their audit reports with them. As a result, NGOs do not even have an idea about the expectations of the supervisors from them and the concerns of the state. This creates a climate of uncertainty, which results in the fact that the civil society self-restraints itself to avoid punishment.
Many NGOs suspended fundraising efforts due to the threat of being accused of supporting “terrorist activities” and removed many executives from their boards of directors who are under prosecution. As a result of the pro-government media’s targeting of foreign funders, many NGOs began to approach their international cooperation with serious reservations. For example, the director of a social welfare organization told Amnesty International that the auditors even asked them why a Christian organization supported the organization because the name of an international funding agency they received funding from had the word “Christian” in it. Finally, on October 21, the FATF announced that they placed Turkey on a ‘grey list’ of countries that ‘do not enough’ about fighting money laundering and terrorist financing.
[1]https://www.yenicaggazetesi.com.tr/reuters-turk-ekonomisi-hakkinda-konustu-turkiye-sahip-olmadigi-parayi-harciyor-490429h.htm
[2] Turhan ve Diğerleri/Türkiye, B.No:75805/16, 21.11.2021, https://hudoc.echr.coe.int/eng?i=001-213369
[3], E. 2019/9.MD-312, K.2019/514 numbered decision of the Court of Cassation’s Penal Committee dated 02.07.2019
[4]Selim Öztürk başvurusu, B.No: 2017/4834,08.05.2019; Yıldırım Turan, B.No: 2017/10536, 04.06.2020.
[5]The ECHR had previously decided in the applications made by the members of the Constitutional Court, Alpaslan Altan and Erdal Tercan, that the crime of being a member of a terrorist organization would constitute a “state of being flagged” at any moment, and therefore the practice that the members of the Constitutional Court could be arrested without following the special procedures regarding the investigation and trial was unpredictable and violated the Convention. . See also Baş/Turkey, App. No: 66448/17, 03.03.2020.
[6] https://www.hurriyet.com.tr/gundem/son-dakika-cumhurbaskani-erdogan-ben-gorevde-oldukca-faizle-mucadelem-surecek-41941114
[7] https://www.resmigazete.gov.tr/eskiler/2021/12/20211202-7.pdf
[8] https://www.amnesty.org.tr/public/uploads/files/TU%CC%88RKI%CC%87YE%20-%20%20TERO%CC%88RI%CC%87ZMI%CC%87N%20FI%CC%87NANSMANININ%20O%CC%88NLENMESI%CC%87%20HAKKINDA%20KANUN%2C%20DAHA%20S%CC%A7I%CC%87MDI%CC%87DEN%20SI%CC%87VI%CC%87L%20TOPLUM%20U%CC%88ZERI%CC%87NDE%20CAYDIRICI%20ETKI%CC%87YE%20YOL%20AC%CC%A7TI.pdf
