From Editor-in-Chief
Prof. Mustafa Erdoğan
Some political developments in recent weeks suggest that there has been tension, to say the least, between the ruling partners AKP and MHP. The AKP-MHP rivalry, which started with the Supreme Court of Appeals’ refusal to comply with the Constitutional Court’s ruling in the case of businessman Osman Kavala, and became more pronounced with the election of the President of the Supreme Court of Appeals last week, has been characterized by the use of the term “leader of a criminal organization.” The detention of Ayhan Bora Kaplan has almost brought relations between the two partners to the breaking point. Meanwhile, the MHP is said to view the Sinan Ateş case as a move by the AKP against it.
One notable aspect of Ayhan Bora Kaplan is his close relationship with Süleyman Soylu, the former Minister of Interior, who is recognized as one of the figures within the AKP with MHP leanings. This relationship is highlighted by accusations against him, notably being labeled the “leader of a criminal organization.” On the night of July 15, it is reported that Kaplan distributed some of the State’s missing weapons to his men and was photographed with Süleyman Soylu, both holding automatic weapons.
The arrest of Ayhan Bora Kaplan seems to be a new link in the chain of operations that Interior Minister Yerlikaya has been conducting against illegal and criminal organizations since assuming office. However, some observers suggest that these operations are targeted at weakening the MHP and diminishing Soylu’s influence “on the streets and within the state.” Still under investigation, Bora Kaplan noted, “If I burn, I will burn everyone,” directed at certain politicians. However, it remains unclear who this message’s intended recipient was.
In his speech at the MHP group meeting, Chairman Devlet Bahçeli characterized the developments in the Bora Kaplan investigation—including the dismissal of two police officers—as “a coup attempt oriented towards security and judiciary, targeting the AKP, the People’s Alliance, and ultimately Turkey.” He stated that such actions would not be tolerated. President Erdoğan appeared to support Bahçeli’s position while addressing his concerns. Erdoğan assured Bahçeli that they would “not allow bureaucratic tutelage to relapse” and hold accountable those who exceeded their legal duties “within the framework of the law.”
Meanwhile, Doğu Perinçek, rumored to be one of the behind-the-scenes partners of the ruling coalition, made a notable comment on the matter. Per Perinçek, the AKP aims to sideline the MHP and instead align with the CHP, beginning with the developments in the Sinan Güneş case. If Perinçek’s observation holds, the recent “softening” policy the AKP and Erdoğan have initiated towards the CHP under its new leader is likely strategic and not indicative of a genuine intention to reconcile. It remains to be seen how this tactical struggle between the AKP and MHP will unfold and what its implications are for Turkey’s pursuit of freedom and democracy in the near term.
Another significant development from last week involves new court rulings against businessman Osman Kavala and politician Selahattin Demirtaş. Notably, Osman Kavala was sentenced to life imprisonment, a decision that contradicted both the European Court of Human Rights and the Constitutional Court’s rulings. The Court of Cassation later affirmed his conviction and became final. Recently, the third request for a retrial filed by Kavala’s attorney was denied by the Istanbul 13th High Criminal Court, which had changed its panel of judges. Consequently, Osman Kavala has been arbitrarily deprived of his freedom for nearly seven years for purely political reasons.
In a separate development, Kurdish politician Selahattin Demirtaş, arrested over the Kobani protests, was sentenced last week to 42 years in prison by the Ankara 22nd Assize Court. Additionally, the court sentenced former HDP co-chair Figen Yüksekdağ to 30 years in jail and veteran politician and Mardin Metropolitan Mayor Ahmet Türk to 10 years. Meanwhile, BDP co-chair Gülten Kışanak, who received a 12-year sentence, was released under judicial control conditions.
What is particularly striking about the verdicts against Osman Kavala and Selahattin Demirtaş is that they were issued during a period when the AKP was ostensibly initiating a “détente” and urging political parties to collaborate on crafting a “civil, democratic, and inclusive” new constitution. Intriguingly, while Kavala and Demirtaş remain imprisoned, seemingly held as political hostages despite ECHR rulings, President Erdoğan has pardoned retired generals implicated in the February 28 incident. These actions collectively indicate that the AKP and Erdoğan’s commitments to political détente and a libertarian, pluralist, democratic Constitution may not be genuine but maneuvers to sustain their political dominance.
The AKP-MHP government continues to push the already restrictive legal system further away from embracing rights and freedoms. A notable move on their political agenda is the proposed addition of a new crime to the Penal Code under the guise of “judicial reform.” This latest offense, termed “the crime of being an influence agent,” typically found in totalitarian systems, focuses on activities perceived as threatening the “security or internal and external political interests of the state.” This concept was already embedded in various sections of the new Turkish Penal Code 2004. I highlighted in a July 2004 article, when the draft Penal Code was being discussed, that this notion contradicts the principles of a democratic society and the rule of law.
As I noted at the time, this crime is incompatible with the principles of a democratic state, as a democracy does not recognize an indisputable, fixed ‘fundamental national interest’. Democracy is precisely about the debate over political preferences and what is deemed to be of this nature. However, establishing a fixed category of ‘national interest’ and criminalizing thoughts and actions perceived as contrary to it effectively stifles democratic debate and renders democratic politics unworkable. Moreover, this norm explicitly complicates the ability to cooperate or engage in joint activities with ‘foreign persons or organizations’ that involve financial aspects. This provision also violates the rule of law principle; in such a state, the ‘legality of crimes’ or the ‘type’ of crime must be precisely defined—its material elements must be established to eliminate any room for debate. Since the definition of ‘contradiction to fundamental national interests’ is unclear, this provision would pre-authorize arbitrariness in applying punishment.
As observed in the recent Kavala and Demirtaş judgments, implementing the new Criminal Code has repeatedly demonstrated that my concerns are correct. Especially in the practice of the Criminal Code in recent years, legal certainty and security have almost wholly disappeared, and arbitrariness has become dominant. This issue is discussed in detail below by our friend A. Rıza Çoban.
One topic that has recently dominated the political discourse is the Ministry of National Education’s efforts to reshape the primary and secondary education curriculums to reflect its ideological stance. Kemalist factions, along with some supporters of the CHP, contend that the AKP is attempting to dismantle secularism through these changes. While there is some truth to these claims, they barely scratch the surface of the broader issue.
Yes, in the new curriculum, which AKP bureaucrats call the “Education Model for Turkey’s Century,” the lessons related to the indoctrination of the requirements of the Islamic religion in every field are almost equal in weight to the rest of the lessons, including science and mathematics. When we consider this data together with the fact that the Ministry has previously signed cooperation protocols with religious communities and foundations, it is clear that the AKP wants to “bend the minds of children and young people while they are still young” in line with its understanding of religion. In other words, the AKP wants to use public resources that belong to Turkish society, composed of various elements with different beliefs, opinions, and lifestyles, to support and spread their religious worldview.
However, this issue is not new in Turkey. The Turkish education system has traditionally been designed to instill a particular ideology and cultivate a uniform type of citizen. The AKP has not dismantled this framework but rather replaced the existing official ideology with its religious worldview. Therefore, the problem is not merely the imposition of a spiritual worldview; the deeper issue is that this program, like previous ones rooted in the indoctrination of an official ideology, is ill-suited for fostering a free and autonomous generation capable of navigating life with critical skills and knowledge. Regrettably, the goal of this program is not to develop self-confident, proactive, and creative individuals who recognize their rights but rather to produce docile, passive, and obedient individuals indoctrinated to believe in ‘no rights, only duties.’
In this issue of Freedom Observer, Ömer Faruk Şen offers a critical analysis, from a human rights perspective, of some CHP municipalities’ decisions to prohibit tradespeople, craftsmen, and merchants within their jurisdictions from displaying signs and advertisements in Arabic. Additionally, Caner Gerek explores the feasibility of the government’s proposed austerity measures in the public sector.
Crime of Influence Agency
Ali Rıza Çoban, Constitutional Lawyer
Following the March 31st local elections, amidst ongoing debates about whether the AKP will adopt stricter policies or move towards normalization after experiencing significant losses, the government has subtly indicated the direction of its future policies. This hint includes a new type of crime in the 9th Judicial Package, details of which were leaked to the public. According to a report by the Anka agency, a new section titled “Other Activities” (Article 339/A) will be added to the Turkish Penal Code under Crimes against State Secrets and Espionage. This provision will criminalize actions carried out in alignment with the strategic interests or directives of a foreign state or organization that are against the security and domestic or foreign political interests of the State. The draft article is presented as follows:
Article 339/A- (1) Without constituting the crimes outlined in this Chapter, but in alignment with the strategic interests or directives of a foreign state or organization contrary to the security or domestic or foreign political interests of the State:
a) Those who conduct or have conducted research on Turkish citizens on institutions and organizations, or foreigners in Turkey,
b) Those who commit crimes within Turkey,
will be sentenced to imprisonment, ranging from three to seven years. If the act also constitutes another offense beyond the crimes regulated in this Chapter, separate penalties shall be applied for each offense.
(2) If the act occurs during wartime or endangers the State’s war preparations, wartime activities, or military operations, the perpetrator shall be imprisoned for eight to twelve years.
(3) The penalty shall be increased by one time if the offense is committed by individuals working in units of strategic importance in terms of national security or by institutions and organizations that manage projects, facilities, and services.
(4) Prosecution of this offense is subject to the approval of the Minister of Justice.
First of all, it should be noted that the news reports do not mention who drafted this text. It is clear that the assertion that the law proposals presented as the virtue of the new government system will be drafted by MPs is unrealistic and that all draft laws are prepared by executive agents without any public debate.
The content of the draft law leaves it unclear exactly which actions are criminalized. The proposed regulation fails to provide criteria for determining what constitutes actions “against the security, domestic, or foreign political interests of the state.” No objective criteria exist for an act “in the strategic interests of another state or organization.” Additionally, “instruction” from another state or organization is left ambiguous. The draft also defines two types of criminal acts: “conducting or commissioning research” and “committing a crime,” but the scope of these actions remains undefined. Consequently, it is impossible to discern the offense’s specific material and moral elements from this text.
The preamble of the Article reiterates the text and highlights the link between the State’s interests and its security. It defines “interests” to include a broad range of aspects: economic, financial, military, national defense, public health, public security, public order, technological, cultural, transportation, communication, cyberspace, critical infrastructures, and energy. These are all encompassed within the concept of the State’s internal or external political interests. As such, activities that are adverse to these interests could be criminalized. This definition, however, does not provide any specific criteria, merely listing various types of benefits.
The text portrays the requirement for ministerial permission for prosecution as a protective measure. However, experiences with Article 299 of the Turkish Penal Code, which addresses insults toward the President, demonstrate that such permission does not serve as a safeguard.
Moreover, suppose a criminal law does not clearly define the specific act it seeks to regulate as a crime. In that case, it cannot be said to comply with the principle of legality, which is fundamental to regulating crimes and punishments.
Such an ambiguous text will lead to arbitrariness in its application, which is the underlying intention. This legislation would enable the government to criminalize any activity it disfavors and punish anyone it opposes. The regulation is likely to impact media severely and civil society organizations, academic researchers, human rights defenders, opposition political parties, and even individual social media users, potentially stifling their ability to operate. The chilling effect this regulation could have on freedom of expression and association effectively amounts to a de facto suspension of these fundamental rights.
In all authoritarian regimes, similar regulations are used to silence dissenting voices. Many repressive regimes, notably Russia, have destroyed civil society and silenced social and political opposition through similar regulations. Ironically, however, silencing the opposition with the threat of punishment is not in the interest of the country and the State.
Debates on Arabic Signs
Ömer Faruk Şen, Ph.D. – Missouri University
Following the March 31st elections, in some municipalities that transitioned from AKP to CHP control, mayors removed Arabic advertisements and signs in their districts, with some mayors taking part in the removals. These actions have received significant attention on social media. CHP Chairman Özgür Özel referred to these actions as populist, noting that Arabic is the mother tongue of 6 million citizens. Özel added, “We must also consider what is written on those signs. If it helps a person to receive services in their mother tongue, that is a right. I have also issued warnings to my mayors about this.”
It is worth noting that Özel’s stance is both reasonable and rights-oriented. Indeed, the actions of some mayors who have removed Arabic signs constitute violations of fundamental rights and freedoms, including the freedom of language and expression, cultural rights, and non-discrimination principles. Moreover, it is inappropriate and unlawful for mayors to undertake such measures against shopkeepers based on their choices in commercial relations, distinct from municipal services. Furthermore, just as with signs in English, Russian, and German, Arabic signage meets the needs of tourists and customers who speak that language, playing a crucial role in the business activities of those establishments.
Furthermore, international treaties to which Turkey is a signatory and the Constitution safeguard the freedoms of language and expression. Within this framework, the presence of Arabic signs should be regarded as a legal right applicable to all languages. Article 10 of the Constitution asserts that everyone is equal before the law, without discrimination based on language, race, color, sex, political opinion, philosophical belief, religion, sect, or similar factors. Similarly, Article 10 of the European Convention on Human Rights ensures the freedom of expression, affirming that everyone has the right to express and disseminate ideas. Thus, signs in Arabic should be viewed as an integral part of freedom of expression and legally protected.
To prevent any misunderstanding, it must be reiterated that the rights of shopkeepers who display signs should be protected, regardless of the sign’s language. However, in Turkey, there has long been a nearly supra-political attitude that espouses discrimination against languages visible in the public sphere. While the presence of foreign Western languages in coastal towns is generally accepted as a necessity, there is often harmful discrimination in areas where Arabic and the long-standing Kurdish languages are prominent. This discriminatory practice contradicts the principles of social equality and justice and the freedom of language and expression. Politicians would do well to highlight this aspect of the issue.
Furthermore, how Özel justifies his position is problematic: “Do not interfere with Arabic signs anymore because you want to get interaction. Arabic is the language of the Qur’an; the public will be offended,” Özel stated, framing his objection not based on rights but in terms of his party’s image. Instead of invoking religious references, Özel and other politicians should address the issue from a human rights perspective to protect the rights and freedoms of all segments of society.
An Overview of Austerity Measures in the Public Budget
Dr. Caner Gerek
Treasury and Finance Minister Mehmet Şimşek and Vice President Cevdet Yılmaz unveiled a public sector austerity package at a press conference on Monday, May 13. The measures include a three-year hiring freeze for new employees, a moratorium on purchasing or leasing new vehicles and buildings for the same period, and capped board fees for public employees. Yılmaz highlighted that increasing productivity is a vital goal of these decisions. He emphasized that the cuts are not just for non-essential spending but are aimed at enhancing the efficiency of public consumption and expenditures. Yılmaz also noted that these savings will help reduce the public budget deficit, primarily from post-earthquake expenses. Following Yılmaz, Mehmet Şimşek stressed the importance of fiscal discipline as a support mechanism in combating inflation. He argued that strict budget discipline would lower the country’s risk premium, enabling more affordable borrowing costs.
While the announced austerity package has been generally welcomed, its impact is expected to be limited. One reason for this subdued expectation is that public sector savings discussions have long focused on automotive purchases, prominently mentioned as a significant cost-saving measure during the press conference. Indeed, Mehmet Şimşek remarked in 2015, “They call it the reign of vehicles. When you add them all up, they are not just peanuts in terms of Turkey’s national income and budget.” (1) Highlighting vehicle purchases suggests that there is a reluctance to target actual savings in more crucial areas.
Despite announcing significant public sector savings, no details were provided on how these would impact the budget. However, the day after the press conference, Minister Şimşek indicated that the effect of the public sector savings package on the budget would be disclosed during the review of the Medium Term Program scheduled for the end of the summer. (2) This admission suggests that no comprehensive analysis has yet been conducted to gauge the potential impact of the austerity measures. Consequently, the effect of the public savings announced at the press conference remains unknown to those responsible for implementing them.
Another significant oversight is that the austerity package does not address the main budgetary expenditures contributing to public sector inefficiency. One such area is public spending through tenders, which has long been conducted in a non-transparent manner due to frequently amended procurement laws. The package includes no provisions to curb these expenditures or enhance their transparency. The lack of competitive bidding regulations, crucial for the functioning of the free market and for reducing public spending, is a significant omission.
Furthermore, the austerity measures fail to address transparency and efficiency in public incentives and tax exemptions. The public sector continues to spend heavily on inefficient incentives, and the criteria for their allocation remain unclear. This absence of transparency or efforts to curtail spending in this area represents a critical flaw in the austerity package. Additionally, despite the Minister of National Education Yusuf Tekin’s announcement that 68,000 teachers are needed, his decision to limit appointments to only 20,000 raises questions about the commitment to efficiency-oriented savings.
The government has to resort to bitter prescriptions to correct the faulty economic policies implemented after the local elections. The first step was taken with the Central Bank’s tightening policies. The steps taken here were steps that would primarily affect the citizens. In a period when citizens are given a bitter prescription and they are expected to take the lead, the public sector is also likely to sacrifice expenditures. Otherwise, the effectiveness of the bitter prescription will decrease. For this reason, the announced public austerity measures are a token effort to meet the austerity measures that society expects from the public sector. Ideally, it is necessary to implement a calculated austerity policy that does not require tax increases. While doing so, it is essential to revisit public tenders and incentives, where inefficiency is very high, and transparency is low, by prioritizing competitiveness.
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