Freedom Observer No: 40

From Editor-in-Chief

Hello again after a short break,

During this period, there have been significant developments in Turkey’s domestic and foreign politics. As you may recall, the government appointed Mr. Mehmet Şimşek as the Minister in charge of economy and finance, and Prof. H. Gaye Erkan as the Governor of the Central Bank, in an attempt to rescue Turkey from the economic crisis it had been plunged into. However, one month after these appointments, there is no sign of any improvement in the economy, especially concerning the exchange rate and the rising inflation, and the situation of the narrow and middle-income groups, most of whom are wage earners, has worsened.

The soaring inflation has made their living conditions unbearably difficult, and the wage increases for public employees and pensioners in July fell far short of compensating for their losses, leading to widespread disappointment. It is often said that “austerity” policies always hit the poor, but this time the government has forced the poor to tighten their belts, while failing to reduce public spending or ensuring that the business community (especially the new capitalists who have flourished thanks to its favoritist policies from the beginning) share the burden. Moreover, it is unclear whether the current economic policy will yield positive results.

On the other hand, the political power seems to have launched a foreign policy offensive in recent weeks. On one side, the government is cautious not to antagonize Russia amid the Russia-Ukraine war, while on the other side, it is making some symbolic gestures to appease Ukraine. Just a week ago, Ukrainian President Zelenski visited Turkey upon President Erdoğan’s invitation, and the two countries reached an agreement to cooperate on defense and other pertinent matters.

Furthermore, a significant development has taken place as Turkey has finally approved Sweden’s membership in NATO. President Erdogan has also expressed his intent to reinvigorate Turkey’s bid to join the European Union. However, what’s intriguing is that in exchange for approving Sweden’s NATO membership, the President has requested Sweden, some other EU countries, and even the United States to support Turkey’s bid to join the European Union. It’s worth noting that unlike NATO, the European Union is not merely a defense organization, but rather a political-economic union based on shared values of human rights, the rule of law, democracy, and a market economy.

During this period, two unfortunate developments have stood out in terms of our country’s chances for democratization. The first concerns Ş. Can Atalay, who was elected as an MP from the Workers’ Party of Turkey while he was under arrest as part of the Gezi protests case. Despite two months passing since the election, Mr. Atalay has not been released, preventing him from fulfilling the democratic representation function entrusted to him by the people. He has been unable to come to the National Assembly and officially take his oath. Our friend A. Rıza Çoban points out that the judicial authorities’ failure to release Hatay MP Can Atalay, in the face of decisions from the Turkish Constitutional Court and the European Court of Human Rights, is a clear violation of the Constitution.

The second case involves intensified pressure on civil society organizations under the AKP-MHP government, this time through tax legislation. As detailed in İsrafil Özkan’s part, according to the findings of the Third Sector Foundation of Turkey, the financial sustainability of up to 70% of civil society organizations in Turkey is at risk, mainly due to them being taxed as if they were commercial companies. A concerning consequence of the state’s policy is that international donors’ grants to civil society organizations, intended for social good, have inadvertently become a source of income for the state in Turkey. This situation poses a significant challenge to the independence and operation of civil society organizations in the country.

In the meantime, a few days ago, unfortunately, another troubling incident occurred. Last Friday’s newspapers featured a news article titled “New Lawsuit against İmamoğlu”. According to the news, while the criminal case filed against İmamoğlu for alleged “bid rigging” during his tenure as the mayor of Beylikdüzü – despite the Court of Appeals ruling that there was no need for an investigation – is still ongoing, a new lawsuit has been filed against İmamoğlu. This time, the lawsuit demands imprisonment of up to 2 years and four months, along with a political ban, on the grounds that he insulted the mayor of Tuzla during one of his speeches.

Regrettably, this case, similar to the previous one, appears to be driven by a political motive to bring an end to İmamoğlu’s political career rather than being the result of a genuine desire for justice to be served.

Finally, I would like to draw attention to a development that contradicts the “secular” nature of the Republic of Turkey and seems incompatible with the President’s goal of reviving the European Union membership. As you may be aware, a massive crowd attended the funeral of the deceased sheikh from the Menzil sect. Not only did a delegation led by the Vice President of the Republic visit the family of the deceased to offer condolences, but the President of the Republic, in his speech, referred to the deceased as “one of the spiritual guides of our country”.

However, it is concerning that the “values” supposedly guiding this sheikh’s “guidance” are inconsistent with the values and ideals that Turkey aims to embody as part of the Western civilized world. It is unbecoming for the President of the Republic to praise the deceased as Turkey’s spiritual guide, when it is evident that their beliefs and principles stand in stark contrast to the values Turkey seeks to embrace in its pursuit of European integration. Such gestures raise questions about the commitment to secularism and the compatibility of certain religious affiliations with the principles of a modern and democratic state.

In summary, time is passing, yet Turkey has not seen any promising progress in politics, the economy, or social life. We remain hopeful that in the upcoming weeks and months, there will be positive developments in the Freedom Observer that can reverse this trend and bring about positive change.

* Prof. Dr. Mustafa Erdoğan

Can Atalay’s Non-Release is a Violation of Fundamental Rights

On May 14, 2023, during the 28th parliamentary elections for the 28th term, Şerafettin Can Atalay, a lawyer who was elected as a member of parliament for Hatay from the Workers’ Party of Turkey, remains imprisoned in the so-called “Gezi Park Protests ” and has not been released even after two months since the elections. As a result, Atalay is unable to attend the Grand National Assembly of Turkey to take his oath, and he is deprived of participating in legislative work. This situation raises concerns about potential violations of fundamental rights.

Atalay’s non-release points to many legal problems and, in this context, to the crisis of the rule of law in the country. First of all, it should be noted that there are many Constitutional Court and ECHR judgments that require the immediate release of Can Atalay. However, it is observed that the Court of Cassation Chamber, which is supposed to decide on the release request, has not taken urgent action for his release by taking these decisions into consideration.

The first question that needs to be addressed regarding Atalay’s legal status is whether he can benefit from parliamentary immunity. In the notification from the Chief Public Prosecutor’s Office of the Court of Cassation, it was stated that Atalay, who is facing charges under Article 312 of the Turkish Penal Code, is not entitled to immunity because of the reference to Article 14 in Article 83 of the Constitution, based on the decisions of the 16th Criminal Chamber of the Court of Cassation in 2018 and 2019. However, in its 2021 ruling on the Ömer Faruk Gergerlioğlu case, the Constitutional Court declared the rule as unpredictable, pointing out that the legislative body does not regulate crimes covered by Article 14 of the Constitution. The Constitutional Court’s finding is as follows:

“When all these issues are considered collectively, taking into account the third paragraph of Article 14 of the Constitution and the provisions of the third paragraph of Article 67 of the Constitution, which regulate the rights to vote, be elected, and engage in political activities, it has been determined that the interpretations made by judicial bodies, other than the regulations set forth by the legislator, regarding which crimes fall under the scope of the term ‘situations in Article 14 of the Constitution’ in the second paragraph of Article 83 of the Constitution, do not provide certainty and predictability.”

After this explicit ruling by the Constitutional Court, local courts cannot assert their authority to determine which crimes fall within the scope of Article 14. Since the legislature has not specified the crimes falling under Article 14 through new regulations after the Constitutional Court’s decision, local courts should promptly suspend the trials of individuals elected as MPs, and in the specific case, they should suspend the trial against Atalay and order his release.

On the other hand, Atalay’s detention also constitutes a violation of the European Court of Human Rights’ Kavala judgment. The ECHR examined the detention of Kavala, who was tried in the same case and sentenced to life imprisonment by the local court, to determine whether it was in accordance with the law. The ECHR ruled that there was no concrete evidence of sufficient suspicion of a crime and that the detention was politically motivated. When Turkey failed to comply with the judgment, the Committee of Ministers initiated a violation procedure, leading to the ECtHR ruling a year ago that Turkey had not complied with the judgment.

Considering that Can Atalay and the other defendants do not have evidence that is not present in Osman Kavala’s file, it can be asserted that Atalay’s detention is also in violation of the ECHR judgment.

On the other hand, in numerous cases, the Constitutional Court has assessed the non-release of elected individuals as MPs as a violation of the right to liberty and security, with regards to the right to be elected and engage in political activities. According to the Constitutional Court, when determining whether to continue the detention of elected MPs, local courts must strike a proportionate balance between the public interest in continuing the trial in pre-trial detention and the applicant’s right to be elected and engage in political activities as an MP. Therefore, unless specific reasons justifying detention are presented, the courts should order the release of the MP to enable them to participate in legislative activities. Otherwise, it would be deemed a violation of Articles 67 and 19 of the Constitution.

Even if Atalay is not allowed to benefit from legislative immunity, he must be released immediately in accordance with the Constitutional Court’s rulings. Each day he remains in detention exacerbates the violation of his fundamental rights.

* Ali Rıza Çoban – Constitutional Lawyer

The Taxation Issue of Civil Society Organizations

The Turkey Third Sector Foundation (TÜSEV) recently published the ‘Monitoring Matrix for a Enabling Environment for Civil Society Türkiye Report. The report provides detailed field studies and analyses on various aspects related to civil society organizations, ranging from violations of organizational and freedom of expression rights to audits and financial structures.

According to the report, when analyzing the status of civil society organizations (associations and foundations) in Turkey, only 28.9% of them are in ‘relatively good financial condition’, while 51.8% are considered ‘weak’, and 19.3% are categorized as ‘very weak’.

Based on this data, the sustainability of 71.1% of civil society organizations in Turkey is under threat. Moreover, the report highlights that a significant portion of the civil society organizations considered to be in ‘relatively good financial condition’ are those that receive grants and financial support from foreign sources. This group includes organizations regulated by Law No. 7262 and subject to frequent audits, as well as civil society organizations that face challenges related to freedom of association and freedom of expression.

Hence, the issue of taxation for civil society organizations, which strive to ensure their financial sustainability through individual and corporate donations, grants, and their own economic enterprises, deserves serious attention and discussion.

The pressures on civil society organizations go beyond interference with freedom of association and freedom of expression, or financial and administrative controls. In Turkey, civil society organizations, despite being expected to be encouraged by the state for their financial sustainability in a democratic society, unfortunately, have to adhere to the same taxation regulations as for-profit companies.

In addition to the injustice of granting tax amnesty to pro-government corporations almost every year and to citizens every few years, the relentless taxation of civil society organizations that work for the common good without profit is highly unfair.

Apart from corporate tax and tax exemptions for grants and donations, civil society organizations pay VAT and withholding tax in almost exactly the same way as private companies. The only way for these organizations to benefit from any tax exemption or incentive is to obtain one of the “Public Benefit Association” or “Tax Exempt Foundation” statuses granted by the President. Very few associations (361) and foundations (323) are known to have these statuses, and an analysis of their distribution reveals that those working in the fields of health and education naturally constitute the majority. It is also widely believed that the political preferences of the government play a significant role in determining which organizations are granted these statuses. Interestingly, all associations and foundations that have been implicated in cases of nepotism, corruption, and abuse within government circles and the bureaucracy in recent years have at least one of these statuses. Similarly, many associations and foundations associated with businesspeople have been granted such status, ostensibly to promote commerce and entrepreneurship. However, predictably, no associations or foundations working in areas such as human rights, the rule of law, and democracy have been granted such status, and it is unlikely that they will be granted anytime soon.

The civil society organizations we aim to discuss in this bulletin utilize grants and donations they receive from abroad to implement projects in their respective countries or regions, with a focus on socially beneficial purposes, such as human rights, democracy, environmental protection, and solidarity with refugees. All activities outlined in these projects are carefully planned through detailed cost-benefit analyses, aiming to achieve measurable and demonstrable results.

Furthermore, strict guidelines are in place to ensure that the budgets submitted to grant agencies are not misused for personal gain or for unrealistic purposes.

In countries with democratic regimes, accountability and transparency are top priorities when it comes to grants, especially from institutions such as the European Union, as these funds are essentially the money of taxpayers living in those countries. However, in Turkey, the grants received by civil society organizations, which are based on meticulously prepared budgets and activities prioritizing social benefit, are treated as the income of for-profit companies and subjected to the same taxation.

These taxes include taxes paid on the salaries of civil society organization employees, social security institution tax, stamp tax, VAT, and excise tax on purchases, as well as withholding taxes on rent and royalty payments. The magnitude and variety of these taxes illustrate that grants provided by other countries and international organizations for social good are perceived as a source of state revenue in Turkey.

In light of all the evident pressures and obstacles faced by civil society organizations, it is imperative to reform the existing taxation policies, which are used as an indirect means of exerting pressure on organizations with significant capacity and influence. While it may be more likely that the current government will not pursue such reforms, we still wish to highlight the positive reform recommendations outlined in this Report:

“All tax legislation concerning CSOs should be reviewed from a holistic perspective, and incentive arrangements should be implemented to support the financial sustainability of CSOs. Economic enterprises established by foundations and associations in line with their objectives should be granted exemption from corporate tax. Transfers made by profitable economic enterprises to the association or foundation from the profit remaining after corporate tax is paid should not be considered profit distribution and should not be subject to income tax withholding.

CSOs’ economic enterprises should not be evaluated based on whether they are profit-oriented or not, but rather on whether their activities align with their objectives. The economic activities of CSOs should not be considered as commercial activities. Additionally, income-generating activities such as bazaars, dinners, balls, trips, concerts, etc., organized by foundations and associations more than once a year should not be classified as economic activities requiring the establishment of an economic enterprise, provided they meet specific conditions.”

Taxes on CSOs’ passive investments should be abolished. CSOs should be exempted from withholding tax or value-added tax on rent they are obliged to pay for the addresses they rent as headquarters; stamp tax, VAT, real estate tax, environmental cleaning tax, motor vehicle tax, and special consumption tax on the contracts they are a party to, as well as notary fees for establishment and subsequent transactions.”

* İsrafil Özkan – Director, Freedom Research Association

Tanju Özcan Raises the Flag of Rebellion in CHP

Bolu Mayor Tanju Özcan, previously known for his contradictory views on refugee policies within the Republican People’s Party (CHP), has become a figure known for his outspoken criticisms against both the government and his own party’s leadership. Recently, Özcan has taken a more radical approach, openly raising the “flag of revolt” against the CHP leadership. Following his defeat in the last presidential elections, he publicly called for the resignation of the entire top management of the CHP, particularly targeting CHP Chairman Kemal Kılıçdaroğlu. Not receiving the response he desired, Özcan initiated a three-day march from Bolu to the CHP headquarters in Ankara.

The mayor of Bolu added an act of “throwing a chair” at the Party headquarters to embellish his march, as a satirical reference to Kılıçdaroğlu’s perceived reluctance to relinquish his chairmanship. In his speech in front of the headquarters, Mayor Özcan made the following remarks: “Now the nation has even lost hope in the opposition. That’s why it’s time for this armchair enthusiast, Mr. Kemal, to step down. If you love the seat so much, look, seat-loving Kemal Kılıçdaroğlu, I brought you a seat. Now get off that seat, go home, and enjoy spending time with your grandchildren.”

As expected, Özcan’s “rebellious” behavior was met with disapproval by the CHP’s top officials. CHP spokesperson Faik Öztrak, with whom he had clashed on numerous occasions, accused Özcan of being a “puppet of the palace,” while Özcan responded by threatening to “burn him in Kızılay square” if Öztrak could prove his claim.

Apart from this heated exchange, which goes against political decorum, the CHP’s top leadership did not ignore Özcan’s act of rebellion at the bureaucratic level. Tanju Özcan has been referred to the disciplinary committee with a request for his full expulsion from the party, and he is expected to provide an oral defense on July 20 as part of the disciplinary investigation.

Çağın T. Eroğlu – Coordinator, Freedom Research Association

¹ Ömer Faruk Gergerlioğlu [GK], B. No: 2019/10634, 1/7/2021, § 79-103, şuradan erişilebilir: https://kararlarbilgibankasi.anayasa.gov.tr/BB/2019/10634

² Ömer Faruk Gergerlioğlu, § 103.

³ Kavala/Türkiye, no. 28749/18, 10.12.2019, şuradan erişilebilir: https://hudoc.echr.coe.int/eng?i=001-199515

⁴ Kavala/Türkiye, [BD], no. 28749/18, 11.07.2022, şuradan erişilebilir: https://hudoc.echr.coe.int/eng?i=001-218516

⁵ Mustafa Ali Balbay, B. No: 2012/1272, 4/12/2013; Mehmet Haberal, B. No: 2012/849, 4/12/2013; Gülser Yıldırım, B. No: 2013/9894, 2/1/2014; Kemal Aktaş ve Selma Irmak, B. No: 2014/85, 3/1/2014; Faysal Sarıyıldız, B. No: 2014/9, 3/1/2014; Ayhan Bilgen [GK], B. No: 2017/5974, 21/12/2017; Kadri Enis Berberoğlu (2) [GK], B. No: 2018/30030, 17/9/2020; Figen Yüksekdağ Şenoğlu ve diğerleri, B. No: 2016/39759, 30/3/2022; Leyla Güven [GK], B. No: 2018/26689, 7/4/2022;