From Editor – in- Chef
As the local elections draw near, political parties are intensifying their efforts towards blocs and alliances. Simultaneously, the Supreme Electoral Council has released the local election calendar. Accordingly, the official process (“election calendar”) for the local government elections scheduled for March 31, 2024, will commence on January 1. The commencement date for election campaigning and restrictions has been set for March 21.
The quest for electoral alliances persists, primarily based on revitalizing previous alignments established during the general elections last May. Within this context, the ruling AKP and the MHP, recognized as the “republic alliance,” are exploring collaborative options, while the opposition parties CHP and the Iyi Parti are endeavoring to reach agreements regarding joint candidacies in certain major cities. On the opposition front, CHP’s new leader, Özgür Özel, appears more inclined towards forming an electoral alliance with the Good Party than Meral Akşener. However, finalization of candidates, particularly in Istanbul, Ankara, and Izmir, remains pending for both the ruling party and the opposition.
However, the ruling party’s pursuit of a constitutional amendment, highlighted in the previous Freedom Observer, has shown no signs of progress. Furthermore, the Justice and Development Party appears to have set aside its plans to alter the current 50+1 requirement for the presidential election, temporarily thwarted by opposition from the MHP. It appears that the MHP, cognizant of Erdogan’s need for their support in the presidential election, is resolutely maintaining its pivotal position. Ö. Faruk Şen elaborates on this matter in further detail in the following section.
This edition of the Freedom Observer also features a thorough analysis and critique by my colleague A. Rıza Çoban. He scrutinizes the Constitutional Court’s ruling, which deemed the “disinformation law,” passed by the AKP-MHP coalition through the legislature, unconstitutional, contrary to public expectations. Additionally, Enes Özkan explores, in his article, the challenges surrounding the effectiveness of the sanctions imposed on Russia due to the war in Ukraine.
See you in the next freedom observer!
* Mustafa Erdoğan
Constitutional Court Rejects Request to Cancel Disinformation Regulation
In 2022, Article 217/A was added to the Turkish Penal Code through Article 29 of Law No. 7418, introducing the offense of “Publicly disseminating misleading information.” This article specifies that disseminating untrue information concerning the internal and external security, public order, and public health of the country, with the explicit aim of instigating anxiety, fear, or panic among the public in a manner conducive to disturbing public peace, shall result in imprisonment ranging from one to three years.
Concerns have arisen regarding the ambiguity of this provision, fearing it might evolve into a censorship mechanism in practical application. There’s apprehension that news disapproved by the government could become subject to investigation under this provision. The truth is multifaceted, and the articulation of these various dimensions from diverse perspectives constitutes the core of freedom of expression and underpins democratic pluralism. Expressing a truth aspect that the government disapproves of could swiftly be labeled as “dissemination of false information.
Despite widespread criticism, the government remained steadfast in implementing the law. Following its enforcement, deputies from the Republican People’s Party submitted an application for annulment to the Constitutional Court, asserting the law’s unconstitutionality. On November 8, the Constitutional Court deliberated on this application and, by a majority vote, dismissed the annulment request. While the rationale behind the decision hasn’t been made public yet, it’s evident that the decision poses significant concerns.
As highlighted in the petition, the term ‘untruthful information’ (fake news) is fraught with ambiguity, and penalizing fake news grants the government the authority to dictate what constitutes the truth. This authority enables the government to label as untrue any information it perceives as detrimental, undesirable, or simply dislikes, allowing for the punitive action against its adversaries. In countries like Turkey, where judicial independence is severely compromised, such regulations effectively operate as a form of censorship. This is because authoritarian regimes’ zeal to combat ‘fake news’ does not emanate from a dedication to truth or reality, but rather from their ambition to monopolize ‘lying’ by asserting the power to define the truth.
False news is not criminalized in any democratic country due to these and analogous threats to democracy. The Venice Commission has issued an Urgent Opinion concerning this regulation in Turkey. Contrary to claims citing similar regulations worldwide, the Commission stated, ‘European countries referenced as models for criminalizing ‘false or misleading information’ have not instituted such measures. Instead, they have imposed obligations on internet platforms concerning illegal content. While some countries have enacted laws addressing disinformation amid the Covid-19 context, these have faced criticism from international organizations, particularly human rights bodies. (1)
The joint Declaration on fake news, released with the participation of numerous international organizations, emphasizes that instituting broad prohibitions on disseminating information grounded in vague and ambiguous terms like ‘fake news’ or ‘non-objective information’ runs counter to the principles of international law governing the restriction of freedom of expression. Consequently, such measures should be rescinded. (2)
The introduction of Article 217/A in the TPC has introduced uncertainty and unpredictability regarding all aspects of the offense. While the article’s title refers to ‘misleading information to the public,’ the content employs the concept of ‘false information,’ leading to inherent uncertainty within the regulation. This ambiguity arises because authentic information could also potentially mislead the public. Every aspect of the regulation is subject to broad interpretation, lacking the necessary precision as per the principles of legality in defining crimes and penalties. Interference with fundamental rights must align with legal provisions. Despite this, the Constitutional Court’s decision not to annul the regulation warrants scrutiny.
The application of the law since its inception has substantiated these apprehensions. As reported by the Journalists’ Union of Turkey (TGS), over the past year, at least 33 journalists have undergone investigations, six have been detained, and four were arrested, although they were subsequently released shortly after. (3) A recent instance exemplifying this trend is the arrest and subsequent release of journalist Tolga Şardan due to his coverage of a National Intelligence Organization (MIT) report alleging corruption within the judiciary. The treatment of social media users, distinct from journalists, follows a similar pattern.
* Ali Rıza Çoban – Constitutional Lawyer
50%+1 Election Rule Discussion
Upon his return from a trip to Germany, President Erdoğan commented on the 50+1 requirement, stating, ‘The 50+1 requirement leads parties astray. It’s unclear whose hand is in whose pocket,’ thereby initiating a discussion on the rule of electing the president by an absolute majority. In response, MHP leader Devlet Bahçeli remarked, ‘Electing the president with 50+1 exemplifies democracy. Take heed, we’re not electing a local head. We’re electing a president, not a Member of Parliament. As MHP, our stance today aligns with our stance from yesterday. (4) After tensions arose between the two factions of the People’s Alliance, a scheduled meeting between their leaders was postponed twice. Eventually, on the day of this assessment, the leaders held a bilateral meeting where they declared their commitment to collaborating in the upcoming local elections. However, the discussions regarding a potential system change were omitted from the announced agenda. (5)
This statement suggests that, for the time being and at least until the local elections, the proposition to eliminate the 50+1 percent requirement has been set aside. However, there’s an anticipation that Erdoğan might reintroduce this matter in the forthcoming years. Hence, it’s prudent to delve into Erdoğan’s motivations and consider the drawbacks this proposal may pose for Turkish democracy.
Erdoğan’s critique of the 50+1 percent rule shouldn’t come as a surprise. He seeks a system that doesn’t bind him to pre-election alliances or post-election coalitions. His preference leans toward a presidential system where the top vote recipient secures victory without compromising the essence of a presidential setup. Since the shift to the ‘presidential system of government,’ Erdoğan has been dissatisfied with the necessity to forge alliances, particularly with smaller parties like the MHP. The AKP’s vote share dwindling to approximately 35 percent and its failure to attain a parliamentary majority in the last two general elections have compelled Erdoğan to broaden the People’s Alliance. Despite the alliance not granting executive power shares to its partners, the 50+1 percent rule for presidential elections compels Erdoğan to expand the coalition, limiting his flexibility. Furthermore, in exchange for backing his presidency, Erdoğan had to allocate parliamentary seats to smaller parties that lacked constituency support.
President Erdoğan finds the ‘mechanical effect’ enforced by the electoral rule unsettling. Previously, Erdoğan advocated for a specific narrow-district electoral system, which faced opposition from his alliance partner, the MHP. Therefore, Erdoğan’s recent remarks should be interpreted as efforts to secure ‘maximum representation with the minimum number of votes’ for both his party and himself in both parliamentary and presidential elections.
President Erdoğan’s pursuit of system changes or constitutional amendments consistently aims at augmenting his authority, countering both political adversaries and allies. Consequently, Erdoğan’s appeals for alterations in the electoral and government systems, constitutional amendments, and similar reforms shouldn’t be perceived as a quest for ‘enhanced institutional design’ but rather as a strategy to perpetuate his power through institutional erosion.
At present, it remains uncertain whether Erdoğan refers to altering the system of government or whether party officials are actively working on this matter. While it’s clear that Erdoğan isn’t contemplating a return to the parliamentary system, his statements suggest an inclination toward maintaining the unchanged structure of the presidential system while seeking a more pluralistic electoral framework. However, there are speculations circulating regarding discussions within the AKP about a semi-presidential-like system. Such a system, where the highest vote recipient secures victory, could reduce the president and major parties’ reliance on smaller parties. Nevertheless, it might also amplify Erdoğan’s dependence on the MHP and other alliance partners in a structure where the cabinet is accountable to both the president and Parliament.
In a semi-presidential system granting parliamentary authority to disapprove the cabinet, smaller parties would possess veto power, necessitating Erdoğan to share executive power. Consequently, it appears that Erdoğan’s preference isn’t to change the system of government but to establish an electoral method within the presidential system that doesn’t compel him into alliances with other parties.
It’s crucial to anticipate that electing a president via a pluralistic method could pose legitimacy concerns for the executive power, thereby risking harm to Turkish democracy. A scenario where a president with extensive powers secures victory with 20, 30, or 40 percent of the vote (depending on the number of candidates) could result in an legitimacy crisis within the administration. It’s fundamental to uphold the principle that in democracies, the executive branch ideally should command 50+1 percent support, applicable to both parliamentary and presidential systems. If this principle is compromised for Erdoğan’s personal political gains—whether for an easier election, eligibility for re-election, or liberation from alliance partner pressures—it could inflict significant damage on Turkey’s political system.
* Ömer Faruk Şen – Ph.D. – Missouri University
The European Parliament’s Assessments on Sanctions
The recent resolution adopted by the European Parliament underscores mounting concerns regarding loopholes within the sanctions regime and their inadequate enforcement.(6) Of significant worry is the diminishing effectiveness of these sanctions. The resolution highlights the surge in imports from nations processing Russian oil, notably India, which serves as a potential ‘back door’ for the European Union (EU), allowing Russian oil revenue to flow back to Russia through intermediary countries such as China, the UAE, Kazakhstan, Kyrgyzstan, Serbia, and Turkey.
To address these challenges, the EP emphasizes the necessity to bolster EU sanctions oversight through a centralized system. It advocates for enhanced coordination among existing sanctions to counter Russian oil exports effectively. Furthermore, the resolution calls for the imposition of a reduced price ceiling on Russian oil, a complete prohibition on Russian LNG-LPG imports, and a comprehensive embargo on Russian diamonds.
It’s essential to note that this resolution mirrors the advisory stance of the European Parliament and doesn’t hold binding authority.
The ruling’s basis reveals that Russia capitalized on a unique exemption within Bulgaria’s EU ban, amassing €1 billion in revenue. This exception permits Russian oil export solely to Bulgaria within the EU boundaries. Yet, it allows Bulgaria to solely export oil to non-EU nations if storage within Bulgaria poses environmental or safety risks. Allegedly, Bulgaria’s principal refinery, Neftochim Burgas, has markedly augmented its procurement of discounted Russian oil post-invasion. It reportedly purchases Russian crude at reduced rates and subsequently distributes it globally, including within EU territories.
The European Parliament is advocating for more stringent oversight and constraints to hinder Moscow’s exploitation of loopholes within EU sanctions.
The European Parliament underscores that the absence of robust sanctions undermines efforts to curb Russia’s economic capacity and its ability to sustain warfare. The resolution highlights a surge in EU imports of goods derived from Russian oil, notably from countries like India, creating a channel for Kremlin-linked oil to enter the EU market.
Concerns persist regarding ongoing trade between EU nations and Russia for critical goods despite imposed sanctions. Reports indicate Russian gas reaching the EU through intermediaries like Azerbaijan.
The text emphasizes the EU’s status as a significant consumer of Russian fossil fuels, remaining reliant on these resources due to exemptions on crude oil and petroleum product imports. Members of the European Parliament (MEPs) are urging sanctions against major Russian oil entities, Gazprombank, and their leadership. Collaborating with the G7, the Parliament advocates for a reduction in the price ceiling for Russian oil and petroleum products, a complete embargo on Russian LNG and LPG imports, and the prohibition of products manufactured outside the EU using Russian oil.
Furthermore, the European Parliament stresses the imperative for the European Commission and EU member states to broaden sanctions, advocating for a comprehensive prohibition on the trade and processing of diamonds originating from Russia or re-exported by Russia to the EU. The resolution underscores the importance of exploring legal avenues that empower the EU to seize frozen Russian assets and allocate them towards the reconstruction efforts in Ukraine.
* Enes Özkan – Economist, Istanbul University
1Bkz. Venedik Komisyonu ve Avrupa Konseyi̇, İnsan Hakları ve Hukukun Üstünlüğü Genel Müdürlüğü (DGI) Acil Ortak Görüşü, “Ceza Kanunu Değişiklik Tasarısı ‘Yanlış Veya Yanıltıcı Bilgi’ İle İlgili Hüküm Hakkında”, 7.10.2022, (CDL-PI(2022)032), para. 31.
2Birleşmiş Milletler (BM) Düşünce ve İfade Özgürlüğü Özel Raportörü, Avrupa Güvenlik ve İşbirliği Teşkilatı (AGİT) Medya Özgürlüğü Temsilcisi, Amerikan Devletleri Örgütü (OAS) İfade Özgürlüğü Özel Raportörü ve Afrika İnsan ve Halkların Hakları Komisyonu (ACHPR) İfade Özgürlüğü ve Bilgiye Erişim Özel Raportörü tarafından yayınlanan “İfade Özgürlüğüne ve “Yalan Haber”, Dezenformasyon ve Propagandaya İlişkin Ortak Deklarasyon”, 3 Mart 2017, https://www.osce.org/files/f/documents/6/8/302796.pdf
3https://teyit.org/teyitpedia/dezenformasyon-yasasinin-yildonumunde-gazetecilere-sorusturma-silsilesi
4 https://www.dunya.com/gundem/sans-oyunlari-ikramiye-dagitim-oranlarina-duzenleme-haberi-711509
5 https://yetkinreport.com/2023/11/29/erdogan-ve-bahceli-gorustu-cumhur-ittifaki-yerel-secimde-birlikte/
6https://www.europarl.europa.eu/news/sv/press-room/20231106IPR09024/parliament-wants-tougher-enforcement-of-eu-sanctions-against-russia