From Editor – in- Chef
Turkey is no stranger to disasters. Following last year’s major earthquake, on February 13, a landslide occurred at a gold mine in İliç, Erzincan, leaving nine workers trapped beneath a cave-in and releasing a substantial amount of cyanide solution into the environment. Regrettably, search and rescue efforts for the workers have thus far been unsuccessful. Moreover, allegations have arisen regarding severe negligence on the part of public authorities, particularly the Ministry of Energy and Natural Resources and the Ministry of Environment, both in the licensing process of the mine and during the supervision phase of this disaster, situated as it is on an active fault line. This same mine had previously garnered attention due to a cyanide pool leak, and in June 2022, a cyanide mixture flowed into the Euphrates River for over two hours following a ruptured transfer pipe. Sadly, the environmental threat posed by the mine persists.
Unfortunately, it appears doubtful that the government will genuinely fulfill its responsibilities in identifying and punishing those accountable for this disaster and implementing the necessary measures and controls to prevent its recurrence. The proposed amendment to the Mining Law, drafted by the AKP government and currently on the legislative agenda of the National Assembly, seeks to restrict the application of the standards introduced following the 2014 Soma disaster.
Meanwhile, almost daily, new developments are emerging that fuel public doubts regarding the impartiality and independence of the courts from political influence, thereby jeopardizing judicial justice. In brief, President Erdoğan has now turned his attention to the Council of State following the Constitutional Court, whose decisions in favor of rights and freedoms have unsettled his government and its coalition partner. Indeed, President Erdoğan responded to inquiries from certain “journalists” on this matter with the following statement:
“We have dismantled the backbone of this malicious network and terrorist organization known as FETÖ. We have drained the swamp of FETÖ, but we are still tackling the remnants. We will persist in exposing the true face of FETÖ and confronting them on every front. Our fight is far from over. We will persevere until the last puppet is incapable of harming Turkey any further. We are unveiling the various masks they wear, revealing their true nature. We will relentlessly pursue these impostors in every guise they adopt. However, we cannot ignore the recent decision the Council of State made. Just as the People’s Alliance cannot remain indifferent to certain peculiar decisions made by the Constitutional Court, we cannot turn a blind eye to this matter. I, too, find it difficult to comprehend some decisions made by the Constitutional Court. While the Council of State occasionally makes such decisions, it is particularly concerning when the Constitutional Court does so frequently. For instance, the Constitutional Court’s decision regarding the BTK is baffling. Where does this lead us? How can such a decision be justified? We will thoroughly investigate this matter and continue to do so. We will monitor developments in the Council of State with equal vigilance.”
President Erdoğan’s sudden shift against the Council of State, an institution he previously supported, stems from its 5th Chamber issuing reinstatement decisions for approximately four hundred and fifty judges and prosecutors dismissed on grounds of alleged affiliation with FETÖ. Despite these decisions being made gradually since 2019, the government appears to be framing them as sudden and collective. This framing suggests that the Erdoğan government aims to leverage the Council of State, which will soon elect a new president, in its favor amid the ongoing judicial reform discussions.
Interestingly, retired admiral Cihat Yaycı, known for his involvement in issues related to FETÖ, made statements during this period alleging that FETÖ members were planning another coup in 2026. This timing raises questions and adds complexity to the situation.
Indeed, as indicated in the statement, the Constitutional Court has consistently issued rulings that have unsettled the ruling political coalition, particularly concerning rights violations, such as in the Can Atalay case. However, the recent decision by the Court stating “no need for a decision” regarding Can Atalay’s appeal to nullify his parliamentary disqualification may suggest that the AKP-MHP coalition no longer perceives the Constitutional Court as a threat. Additionally, the upcoming election for the presidency of the Constitutional Court, with Zühtü Arslan’s term set to end in April, signals a significant development in this regard. It appears that the state and the government may soon no longer feel the need to be concerned about the decisions made by the Constitutional Court.
Finally, we would like to draw attention to an incident that exemplifies the gravity of the situation within our judiciary, which is expected to uphold independence and impartiality. This pertains to the dismissal of Judge Ahmet Çakmak, who, before the presidential election last May, argued that Tayyip Erdoğan’s candidacy for a third term was unconstitutional. Judge Çakmak had petitioned the Supreme Electoral Council to invalidate Erdoğan’s candidacy. When his petition was rejected, he pursued an individual application to the European Court of Human Rights. However, the Council of Judges and Prosecutors initiated an investigation against him during this time. Ultimately, Judge Çakmak was dismissed from his profession because he was “relocated” (exiled) twice before.
The true reason for Judge Çakmak’s dismissal was not his alleged misconduct but rather his expression of an opinion on a matter concerning President Erdoğan, which some circles perceive as being “out of line” with their political agenda. However, it is undeniable that individuals cannot be subjected to legal repercussions for exercising their constitutional rights. Even if those in power disagree, citizens can petition the authorities on issues that affect them and the public interest. As stipulated in the Constitution, the eligibility of a presidential candidate is undoubtedly a matter of concern for all citizens.
The dismissal of Judge Ahmet Çakmak in such a manner serves as a stark and crude indication that not only are universal principles of law and justice, such as judicial independence and the protection of judges, being blatantly disregarded in Erdoğan-Bahçeli Turkey, but also that even the minimum standards of a civilized political society are being disregarded. Politically, this incident further confirms the determination of the AKP-MHP coalition to suppress any exercise of rights and freedoms perceived as a threat to their authority.
In the upcoming pages, Ali Rıza Çoban analyzes and assesses the 8th Judicial Package, expected to be discussed in the General Assembly of the National Assembly from the perspective of rights and freedoms. Ömer Faruk Şen, in his article on the latest developments in the Gezi trial, reminds us that this trial represents a regrettable example that has severely undermined hopes for the rule of law and democracy in Turkey. Meanwhile, Çağın Eroğlu warns about the forthcoming legal regulation on cryptocurrencies, which is anticipated to be brought to the agenda after the local elections.
We look forward to reconnecting with you in the next edition of the Freedom Observer.
* Prof. Dr. Mustafa Erdoğan
What Does the 8th Judicial Package Bring?
The 8th Judicial Package[1], presented by the government and now under parliamentary review following the completion of deliberations by the Commission, comprises 42 articles amending 15 laws and a decree law. While the bill offers partial improvements, it fails to address the chronic issues plaguing the Turkish judiciary. Particularly notable is the absence of amendments aimed at guaranteeing judicial independence or addressing practices that lead to violations of fundamental rights. The Constitutional Court and the European Court of Human Rights have highlighted the unjust arrests and punishments of tens of thousands of individuals, often resulting from overly broad interpretations of terrorism laws and the criminalization of activities falling within the realm of freedom of expression, assembly, and association. Despite these rulings, the proposal lacks provisions addressing these critical issues, nor does it include measures such as amnesty or sentence reduction for individuals convicted under these laws.
It appears that many of the amendments proposed in the bill aim to address the requirements outlined in the annulment and rights violation decisions issued by the Constitutional Court. However, there are still several shortcomings and challenges present in this regard.
To provide a summary, one significant amendment involves standardizing the application periods for appeals and cassations in procedural laws. Under this change, these periods will commence upon receipt of the reasoned decision and will be set at two weeks. This regulation is positive and expected to resolve specific practical issues and uncertainties.
Another significant amendment is the establishment of a commission within the Ministry of Justice to handle applications concerning violations of the right to a trial within a reasonable time and alleged non-fulfillment of court decisions. This regulation was implemented in response to the pilot decision and subsequent dismissal decisions issued by the Constitutional Court.
While this regulation is fundamentally optimistic, it is essential to highlight a significant shortcoming: the failure to provide attorney fees for the applicant’s lawyer if the applications to the Commission are deemed justified. Additionally, the compensation awarded by the Commission should be commensurate with the amounts awarded by the European Court of Human Rights (ECtHR) and the Constitutional Court. Without careful consideration in determining compensation amounts, the Commission risks exacerbating issues rather than offering solutions.
The third amendment introduces a right to compensation for specific unjustified protection measures, such as restrictions on leaving the residence, admission to a treatment institution, or compulsory medical examination. Furthermore, it is proposed that compensation claims, particularly in cases automatically warranting compensation (such as in the event of a verdict of non-prosecution or acquittal following the application of detention or arrest measures, as well as in cases where measures like residence restrictions or admission to treatment institutions were imposed), will be submitted to a compensation commission to be established.
Previously, compensation cases had to be filed before the heavy criminal courts. However, if the compensation commission adheres to the standards set by the ECtHR and the Constitutional Court and awards attorney fees in favor of the lawyers representing the applicants, this regulation could be deemed positive.
The fourth significant amendment pertains to the deferral of the announcement of the verdict (HAGB), and the rationale behind this change stems from the Constitutional Court’s decisions regarding rights violations and annulments.[2] The most crucial alteration in this regard is the discontinuation of the practice of asking the defendant at the beginning of the trial whether they accept the HAGB and introducing the possibility of appealing against HAGB decisions.
Previously, the defendant’s acceptance of the HAGB at the outset of the trial could lead to bias against the defendant within the court. Moreover, the inability to appeal and the failure to examine the substance of the decision during the appeal process often resulted in automatic convictions. The amendments introduced aim to mitigate these shortcomings significantly.
However, the provision allowing for decisions on confiscation in addition to the HAGB decision and enabling the immediate implementation of this decision appears highly controversial.
After the rulings of the European Court of Human Rights (ECtHR) and the Constitutional Court of Turkey (AYM) regarding the criminalization of committing crimes on behalf of an organization without being a member of it, the new proposal restructures this offense as two separate crimes in independent articles (Article 220 and Article 314 of the Turkish Penal Code). However, it is difficult to claim that the new regulation is in line with the decisions of the ECtHR and the AYM.
Firstly, under Article 314, the punishment for both membership in a terrorist organization and committing crimes on behalf of the organization without being a member is regulated similarly. Moreover, an additional punishment for the committed crime is also stipulated in the latter case. Especially if actions such as attending a meeting, organizing a demonstration, or hanging banners are considered within the scope of this offense, the penalties imposed may become even harsher than those for membership. This regulation exacerbates the ambiguity that led to the violation decisions.
On the other hand, the proposal does not include any amendments regarding many different issues for which the ECtHR.[3] or the AYM[4] Have issued violation or annulment decisions. For instance, despite the annulment of Article 187 of the Turkish Civil Code regarding the surname of married women, no regulation is included in this proposal. Similarly, no changes are proposed regarding Article 9 of Law No. 5651, which the AYM annulled. Additionally, there are no amendments foreseen for Article 299 of the Turkish Penal Code concerning insults to the President, despite the ECtHR’s ruling in the case of Vedat Şorli/Turkey that a new regulation was necessary. Numerous other examples can be provided.
In conclusion, the 8th Judicial Package is far from offering a real solution to Turkey’s judicial problems beyond partial improvements.
* Ali Rıza Çoban – Constitutional Lawyer
The retrial of Gezi Trial Defendants Continues
Upon rehearing the Gezi protests case following the overturning of the convictions by the Court of Cassation, the lower court made several significant decisions in alignment with the recommendation for acquittal by the 3rd Criminal Chamber of the Court of Cassation. Firstly, it decided to lift the travel bans imposed on Ali Hakan Altınay, Yiğit Ali Ekmekçi, and Mücella Yapıcı. Additionally, the court stated that the Istanbul Police Department should be queried regarding any footage of these individuals participating in the Gezi protests. The hearing was adjourned to May 22, 2024.
The recent decision by the Istanbul 13th High Criminal Court to lift the judicial control measures for the defendants, despite initially sentencing them to 18 years in prison, is indeed a positive development. This decision indicates that the lower court respected the reversal decision made by the higher court, the Court of Cassation. It is commendable that the lower court should have unlawfully ignored the higher court’s decision, especially considering the potential politicization of such cases.
Recently, there have been instances where decisions in cases with political implications have disregarded the rulings of higher courts. Therefore, the lower court’s adherence to the higher court’s decision in this case is a step in the right direction for upholding the rule of law and ensuring fair and impartial judicial proceedings.
Unfortunately, in Turkey, we have come to rejoice when we see even a small development that aligns with the law’s natural functioning. Many defendants, including Osman Kavala, were sentenced to aggravated life imprisonment or 18 years in prison each, and the Court of Cassation upheld these sentences as a result of a political agenda and processes that violated the right to a fair trial.
Unfortunately, the Gezi trial constitutes one of the main axes along which both the rule of law and democracy are being eroded in Turkey. For example, Can Atalay was sentenced to 18 years in prison and, as we have reported in a previous bulletin, he was not released from jail despite being elected as an MP in violation of precedent and the law, and his parliamentary seat was revoked last month.
Consequently, despite the Constitutional Court’s favorable ruling, Atalay’s right to “stand for election and participate in political activities” was stripped away by the Istanbul 13th High Criminal Court. The CHP and Atalay’s legal representatives filed two applications demanding the nullification of Can Atalay’s parliamentary deprivation. However, the Constitutional Court declared last week that there was “no need for a decision” on both applications. From the onset, the Gezi trial has served as a stark illustration of how political motivations can overshadow the right to a fair trial and freedom of expression. The severe sentences imposed on Osman Kavala and other defendants have eroded confidence in the judiciary’s independence and impartiality. This has curtailed the fundamental rights of protest and expression, essential in democratic societies, and impeded societal democratic participation. The enduring legacy of the Gezi trial will continue to raise doubts about Turkey’s dedication to the rule of law and its democratic advancement.
* Ömer Faruk Şen – Ph.D. – Missouri University
Latest on Crypto Law
Since the beginning of 2024, discussions regarding the new legal framework concerning crypto assets in Turkey have surfaced despite it not being among the foremost topics of the economic agenda. Following the recent Economic Coordination Board meeting, Vice President Cevdet Yılmaz announced that efforts towards the new cryptocurrency legislation are underway, even specifying a timeframe. Yılmaz indicated that the legislation will be among the parliament’s top priorities in April, immediately following the local elections scheduled for March 31. Consequently, the forthcoming crypto law has begun to emerge on the horizon.
Public awareness of the law’s specifics remains primarily confined to broad definitions. What is known publicly is that the law will adopt a regulatory role. However, the extent to which this regulation will reach beyond the legal definition of crypto assets is a significant question mark. One of the critical reasons why crypto investors are drawn to this alternative is the decentralized nature of cryptocurrencies and the market. Consequently, the notion of “centralized supervision” contradicts the essence of cryptocurrencies. While this requirement could potentially be met through specific licensing obligations, it is expected that regulation should minimally impede investors’ activities.
Cryptocurrency regulation presents Turkey with crucial junctures. On one hand, the drive to exit the FATF’s “Gray List” is deemed the foremost imperative of these regulations. This is a legitimate evaluation, given that cryptocurrencies present diverse challenges and opaque areas in terms of complying securely with FATF requirements.
Simultaneously, cryptocurrencies remain an investment avenue for numerous economic entities in Turkey and globally. Consequently, measures taken solely to fulfill FATF requirements risk disregarding the essence and dynamics of crypto markets entirely. This could potentially constrict the economic landscape for crypto investors, particularly those residing in Turkey. To avert this, the needs of investors should be considered at least as attentively as those of the FATF.
As such, following the elections, the legislator in Turkey faces a delicate balancing act that will directly impact market dynamics and economic activities. At present, we can only await the correct calibration of this delicate scale.
* Çağın T. Eroğlu
[1] Ceza Muhakemesi Kanunu ile Bazı Kanunlarda ve 659 Sayılı Kanun Hükmünde Kararnamede Değişiklik Yapılmasına Dair Kanun Teklifi, şuradan erişilebilir: https://cdn.tbmm.gov.tr/KKBSPublicFile/D28/Y2/T2/WebOnergeMetni/6e8b6477-2942-49d1-acf1-cfa13bcac252.pdf
[2] AYM, E.2022/120, K.2023/107, 01/06/2023.
[3] Işıkırık/Türkiye, no. 41226/09, 14.11.2017
[4] Hamit Yakut [GK], B. No: 2014/6548, 10/6/2021; AYM, E.2023/132, K.2023/183, 26/10/2023
