From Editor – in- Chef
Since the last Freedom Observer, allegations of corruption within Turkey’s judiciary have come to the forefront of the country’s political agenda. Roughly ten days ago, İsmail Uçar, Chief Prosecutor of the Istanbul-Anadolu Courthouse, submitted a report to the Council of Judges and Prosecutors, raising concerns about bribery and criminal activities within the judicial system. The report contains exceptionally serious allegations that have eroded trust in the judiciary.
Chief Public Prosecutor Uçar has expressed concerns about certain members of the judiciary engaging in what he describes as “unlawful practices.” These individuals are alleged to be involved in bribery, facilitating illicit transactions, manipulating access to specific news articles for financial gain, and carrying out irregular evictions. Uçar has also drawn attention to the emergence of criminal networks within the judiciary.
While the Minister of Justice has initiated an investigation to uncover and penalize those involved in bribery and corruption, regrettably, there are doubts about the investigation’s ability to fully uncover all the perpetrators and aspects of the case. This problem appears to have a structural source, closely tied to the politics of the AKP government. In fact, the aforementioned report suggests a pressing need to significantly increase the number of judges and prosecutors. This need arose following the extensive purges within the judiciary after the 2016 coup attempt, which resulted in a decline in the quality of judicial personnel.
If the findings in the Chief Prosecutor’s Report accurately reflect the truth, the practice of partisan staffing within the judiciary, initiated in the summer of 2016 under the pretext of purging ‘FETÖ members,’ seems to have enabled certain groups, who draw their influence from their proximity to political power rather than their professional competence, to take actions that bypass or deviate from standard legal procedures over time. In essence, it appears that we are dealing with a systemic issue stemming from the events of the July 15-20 Process, rather than an isolated problem caused by a few judicial personnel ‘going astray.’ This is why we have reservations about the case ever being fully elucidated.
Another important development for the current nature and future of the regime in Turkey is that the “infringement procedure” initiated against Turkey for not releasing businessman Osman Kavala, who was charged with “attempting to overthrow the government of the Republic of Turkey” and sentenced to aggravated life imprisonment despite the rulings of the European Court of Human Rights, has finally yielded a result. The Parliamentary Assembly of the Council of Europe (PACE), which met in Strasbourg on October 12, decided to suspend the voting rights of the Turkish delegation if Osman Kavala is not released by January 2024. According to the resolution, if Kavala is not released, Council of Europe member states will also be able to impose sanctions on all officials, including judges and prosecutors, who played a role in sending Kavala to prison.
The negative impact of PACE’s decision, which has dealt a significant blow to Turkey’s reputation in the Western world, will not be limited to Turkey’s foreign policy and diplomatic relations. It will also have unintended economic consequences and hinder citizens’ interactions with European countries and institutions on various occasions such as business, culture, and tourism.
In the meantime, below you will find a comprehensive assessment of the Constitutional Court’s decision to no longer review individual applications alleging violations of the right to a “trial within a reasonable time,” and a summary of the Freedom House Report, which indicates that internet freedom in Turkey regresses each year.
See you in the next Freedom Observer.
* Prof. Dr. Mustafa Erdoğan
The Constitutional Court Gave Up!
In its Keser Altıntaş decision published in the Official Gazette dated October 10, 2023, the Constitutional Court announced that it would no longer consider individual applications alleging violations of the right to a trial within a reasonable time. It is quite unusual for a court to decide not to review applications related to matters within its jurisdiction, and more importantly, it appears to be in clear violation of the constitution. According to Article 36/2 of the Constitution, ‘No court shall abstain from hearing a case within its jurisdiction.’ How and why did the Constitutional Court make such a decision despite this explicit constitutional provision?
The failure to resolve cases within a reasonable timeframe remains a persistent and structural issue within the Turkish judicial system, necessitating comprehensive structural reforms for its fundamental resolution. Regrettably, Turkish governments and the judiciary have not undertaken significant reforms to address this underlying problem. Consequently, individuals whose cases remained unresolved for extended periods turned to the European Court of Human Rights (ECtHR) even before individual applications to the Constitutional Court became recognized. In 2012, following the introduction of individual applications to the Constitutional Court, to alleviate the substantial caseload at both the ECtHR and the Constitutional Court, the ECtHR issued the pilot judgment in the case of Ümmühan Kaplan v. Turkey, while the Constitutional Court issued the pilot judgment in the case of Nevriye Kuruç in 2022. Both pilot judgments identified structural issues and called for the establishment of a domestic mechanism to address cases exceeding reasonable timeframes.
Following the Ümmühan Kaplan judgment, the Compensation Commission was established under the Ministry of Justice through Law No. 6384. The Commission ruled on the inadmissibility of applications brought before it and directed applicants to apply to the Commission for their cases. While this process helped alleviate the backlog of reasonable time applications before the European Court of Human Rights (ECtHR), a new backlog of reasonable time applications started accumulating before the Constitutional Court.
According to the Constitutional Court’s statistics, from September 2012, when individual applications began, until the end of September 2023, a total of 33,414 reasonable time applications were submitted, out of which 86,426 were processed. 4
In its Nevriye Kuruç judgment, the Constitutional Court expressed its inability to adequately fulfill its role in safeguarding fundamental rights due to the overwhelming number of reasonable time applications. It recognized a systemic issue related to the right to a trial within a reasonable time and emphasized that despite various measures taken to address this structural problem, an effective remedy should be established in accordance with Article 40 of the Constitution to compensate for damages resulting from the violation of this right.
Subsequently, Law No. 7445 amended Provisional Article 2 of Law No. 6384, enabling reasonable time applications pending before the Constitutional Court as of March 9, 2023, to be referred to the Compensation Commission following the Court’s determination of “inadmissibility.” However, the Constitutional Court, unsatisfied with this amendment, announced in its Keser Altıntaş decision that it would not review reasonable time applications unless a permanent mechanism for handling such cases was established before individual applications. As a result, it decided to dismiss individual applications filed after March 10, 2013.
However, it should be noted that this decision did not resolve the issue but rather exacerbated it. To begin with, while the Constitutional Court’s concerns regarding the implementation of the pilot judgment’s requirements are valid, as previously mentioned, this decision is in clear contradiction to Article 36/2 of the Constitution. According to this article, no court has the authority to abstain from considering a case within its jurisdiction. Therefore, the Constitutional Court cannot exempt itself from its duty unless the Parliament passes a law establishing a mechanism for addressing these complaints. It cannot evade its responsibility by misinterpreting Article 80 of its own Rules of Procedure in the face of this explicit constitutional prohibition.”
Additionally, the Constitutional Court’s reference to the ECtHR judgment in Burmych and others v. Ukraine ([BD]) may be misleading. In that judgment, the ECtHR dismissed the applications before it due to the ongoing structural issue of non-implementation of judicial decisions in Ukraine, as highlighted in the pilot judgment. The ECtHR subsequently entrusted the implementation of these applications to the Committee of Ministers. Essentially, the applicants in that case ended up with a similar outcome to what they would have experienced if the Constitutional Court had found a violation. However, it’s worth noting that there is no mechanism in place to supervise and ensure the enforcement of the Constitutional Court’s decisions.
On the contrary, following this decision, there is no longer any mechanism available within domestic law to address reasonable time complaints, leaving individuals with no alternative but to turn to the ECtHR for redress. This is likely to add to the already significant workload of the ECtHR, which is already burdened with applications against Turkey, and could further strain the relationship between Turkey and the Council of Europe.
However, the most concerning aspect is the plight of citizens of the Republic of Turkey whose right to a fair trial has been violated. These citizens find themselves in a state of helplessness, as their lives have been marred by unjust regulations, unlawful practices, unnecessary investigations, and protracted trials, often stemming from the actions of incompetent, unqualified, or corrupt members of the judiciary and law enforcement agencies.
* Ali Rıza Çoban – Constitutional Lawyer
PACE Passes Resolution on Kavala’s Release
The Parliamentary Assembly of the Council of Europe (PACE), convened in Strasbourg, passed a resolution calling on Turkey to ‘adhere to the binding judgments’ of the European Court of Human Rights and ‘promptly release Osman Kavala, who is currently held in detention in violation of the law.’ The session saw 62 members participate in the vote, with 44 members in favor of the resolution and 18 against it, securing a two-thirds majority. The resolution further underscored that the Kavala case ‘undermines the foundations of the treaty system.’
Based on Petra Bayr’s report, PACE adopted the resolution, highlighting that Turkey has not yet released Osman Kavala, a human rights advocate, despite the European Court of Human Rights’ (ECtHR) 2019 ruling, which mandated his immediate release. The resolution also pointed out that Turkey has failed to fulfill its obligation to comply with the Court’s second ruling in July 2022.
The refusal of the Turkish authorities to execute this verdict is not only a personal tragedy for Osman Kavala and his family, but also a tragedy for the rule of law and justice in Turkey,” the PACE parliamentarians said, adding that Kavala falls under the definition of a “political prisoner” and that Turkey’s actions “are aimed at silencing him.
In view of the highly exceptional case of Mr. Kavala and Turkey’s failure to fulfill its obligations in the face of ECtHR judgments, the time has come for PACE to initiate the complementary joint procedure envisaged in Resolution 2319 (2020). Accordingly, member states were advised that “if Turkey fails to release Osman Kavala, ‘Magnitsky legislation’ or other available legal instruments, targeted sanctions against the authorities, including prosecutors and judges, responsible for the unlawful and arbitrary deprivation of freedoms.
Furthermore, the Parliamentary Assembly states that if Osman Kavala is not released by 1 January 2024, “the power to challenge the qualification documents of the Turkish delegation at the first partial session of 2024 will be triggered and the Turkish delegation will be deprived of their right to vote in PACE. Finally, PACE stated its readiness to “work in close cooperation with the Committee of Ministers, the Secretary-General and Turkey to ensure the execution of the Kavala judgment, protect the Convention system and ensure the credibility of the Organization.
The failure to comply with ECtHR judgments and release Mr. Kavala will have detrimental consequences for the rule of law in Turkey and Turkey’s relations with Europe. Primarily, the prolonged detention of Mr. Kavala unequivocally demonstrates Turkey’s disregard for international law and human rights standards. Failing to release Mr. Kavala, despite the ECtHR’s rulings, directly contradicts a fundamental principle of international law, which is the ‘adherence to binding judgments.
Furthermore, Turkey’s failure to adhere to judgments and its approach towards human rights violations significantly tarnishes its international reputation. This is bound to further deteriorate Turkey’s already strained diplomatic relations with European countries and institutions. Additionally, PACE’s objection to the credentials of the Turkish delegation and the potential threat to limit their voting rights may carry serious repercussions. Ultimately, this could diminish Turkey’s influence within the Council of Europe.
* Ömer Faruk Şen – Ph.D. – Missouri University
Turkey Continues to Regress in Internet Freedoms Report
Since 2009, the ‘Freedom on the Net’ report, annually published by the US-based Freedom House, has indicated that while 20 countries worldwide witnessed improvements in internet freedoms last year, 29 countries, including Turkey, experienced a decline.
Since 2019, when I authored the Turkey section of the report, we have been witnessing not only a decrease in internet freedoms but, regrettably, a broader erosion of rights and freedoms in Turkey. This year, which saw the worst situation yet regarding internet freedoms, also underscores that Turkey is the third-fastest shrinking country over the past decade.
This year’s ‘Freedom on the Net’ report, titled ‘The Repressive Power of Artificial Intelligence,’ highlights an ongoing decline in freedom worldwide, and Turkey stands out as one of the leading countries in this trend. Over the last decade, Myanmar has experienced a 30-point decline, Russia a 19-point decline, and Turkey, alongside Uganda and Venezuela, a 15-point decline each. These statistics position them as the countries with the most rapidly shrinking spaces for freedom.
Key highlights from the past year encompass the enactment of the Disinformation Law by Parliament and its subsequent implementation, which led to the imprisonment of journalists and their convictions. Among the most noteworthy developments were the unlawful mass surveillance efforts by the Information and Communication Technologies Authority, the disruption of communication channels after the devastating earthquakes in February, and the curtailment of access to social media following both the earthquake and the terrorist attack in Istanbul in 2022.
The report also emphasized that one of the significant factors affecting users’ internet access is new subscriptions, which have slowed down due to high inflation. Additionally, the theft of connection cables has become increasingly prevalent across the country each year.
Alongside the emerging developments of the past year, several recurring practices have persisted this year. These include instances where many users face physical violence, insults, investigations, and legal proceedings as a consequence of their expressions. Gender-related expressions continue to be restricted through oppressive measures, and independent news outlets are being incorporated into the ‘safe internet package,’ thereby impeding their accessibility to the wider public.
Despite prison sentences and arrests related to digital media publishing, the sole positive development noted in the report is that no one received a long-term imprisonment sentence last year.
According to the report, Turkey is ranked with a score of 30, placing it just below Thailand (39), Azerbaijan (37), Rwanda (37), and Kazakhstan (34), and slightly above Venezuela (29), Bahrain (28), and Egypt (28). Alongside Sudan and the United Arab Emirates, Turkey is one of the only countries to receive a score of 30. Moreover, when the Eurasian region is assessed as a separate entity, Turkey is notably the sole non-free country among the countries monitored on the European continent.
The fact that opposition parties have not adequately addressed the issue during the legislative processes governing the digital sphere in recent years, failed to initiate discussions on this topic, and the limited coverage of experts who raised critical concerns in independent media have all contributed to the current state of affairs. We hope that the newly elected Parliament will be more proactive over the next five years in areas such as safeguarding individuals’ data privacy, curbing mass surveillance and profiling, countering oppressive political and state surveillance of citizens, and upholding a free and open internet. Furthermore, we anticipate increased awareness-raising publications and commentaries in independent media concerning digital rights and freedoms.
In conclusion, we also hope that reports like the Freedom on the Net will emphasize trends over scores, and that Turkey can shift its trajectory from being a non-free country to becoming a free country.
To access the full report: https://freedomhouse.org/report/freedom-net/2023/repressive-power-artificial-intelligence
* Gürkan Özturan
1 Keser Altıntaş [GK], B. No: 2023/18536, 25/7/2023
2 Ümmühan Kaplan/Türkiye, B. No: 24240/07, 20/3/2012
3 Nevriye Kuruç [GK], B. No: 2021/58970, 5/7/2022
4 https://www.anayasa.gov.tr/media/8917/bb_2023_3_tr.pdf
5 Burmych ve diğerleri/Ukrayna ([BD] B. No: 46852/13, 12/10/2017.