Apart from the infamous terrorist attack in Ankara, the political agenda of the past two weeks has once again been dominated by issues of law and justice. On the first day of October, one citizen was killed, and two police officers were wounded in a bomb attack on the Ministry of Interior and the General Directorate of Security in Ankara. Meanwhile, according to the Interior Minister, “one of the terrorists detonated an explosive device, resulting in his own demise, while the other terrorist was neutralized.
Following the attack, the Turkish Foreign Minister issued a strong statement, asserting that the PKK terrorists had entered from Syria. Consequently, any facility associated with the “KK/YPG” in Syria and Iraq had become a legitimate target for Turkey’s security forces. He emphasized that the terrorist organization would come to regret their actions. In the aftermath of the bombing, the Turkish air force conducted a series of airstrikes against PKK targets in northern Iraq and Syria, resulting in the destruction of multiple targets.
At the forefront of the legal agenda is the resolution of the Osman Kavala and Gezi Trial, where the Court of Cassation has affirmed the prison sentences of most of the defendants. Consequently, businessman Osman Kavala has been sentenced to aggravated life imprisonment for “attempting to overthrow the government of the Republic of Turkey,” and the eighteen-month prison sentences of MP Can Atalay, Tayfun Kahraman, Mine Özerden, and Çiğdem Mater Utku for aiding and abetting this crime have become final. However, it is worth noting that the judicial process involving Kavala and his associates has been marred by numerous substantive and procedural legal errors from the very beginning.
Throughout this process, the principles of a fair trial have been violated on numerous fronts, and there have been some extraordinary anomalies that are not typically observed in judicial proceedings. Osman Kavala was arrested despite the absence of reasonable grounds for suspicion that he had committed the alleged crime. Even though this fact was acknowledged by the European Court of Human Rights (ECHR), he was not released and remained in detention for an extended period. Furthermore, following Kavala’s acquittal on charges of attempting to overthrow the government, he was subsequently arrested on espionage charges. This paradoxical situation involved Kavala being acquitted of “attempting to overthrow the government” by one court, only to later be convicted of the same offense by another court, with the final conviction being upheld by the Court of Cassation.
In terms of the merits of the case, even though the AKP government has labeled the Gezi events as the “Gezi uprising,” there is no legitimate basis for the Gezi defendants to be charged with serious offenses such as “attempting to overthrow” the constitutional order or the government. These events primarily involved peaceful protests where citizens exercised their constitutionally protected rights to assemble and demonstrate. The minor instances of public order violations that occurred during these events can be more accurately described as routine “police incidents.” Furthermore, there was no organized and cohesive group with hierarchical structures aiming to overthrow the government through the use of force and violence.
Undoubtedly, the Court of Cassation’s decision to uphold the sentences of Mr. Kavala and his associates has had a detrimental effect in Europe. Concurrently, the Parliamentary Assembly of the Council of Europe is gearing up to address the Osman Kavala and Gezi Trial during a special session of the plenary scheduled for next week, categorizing it under the title of “urgent matters.” It is probable that a resolution condemning Turkey and/or urging the release of Mr. Kavala may emerge from this session.
Another notable issue in this context is the situation of Can Atalay, who received a prison sentence in the Gezi trial but was not permitted to take his oath of office, despite being elected as a Member of Parliament (MP) in the interim. The request made to the Court of Cassation for his release, based on the argument that he should enjoy legislative immunity as an elected MP, was also denied. Subsequently, the matter has been forwarded to the Constitutional Court through an individual application, and it is anticipated that the Constitutional Court will review the application and make a decision during its session on October 12.
The latest item on the agenda this time is the constitutional amendment issue, which will likely remain a prominent topic for weeks or even months. As you may be aware, President Erdoğan and the AKP leadership have been urging opposition parties to engage in the creation of a “new and civilian constitution.” During his recent address at the Grand National Assembly’s opening, Erdoğan discussed the objective of “introducing a new and civilian constitution for the nation,” emphasizing a constitution that will guide and enhance the country and society. However, considering the constitutional amendments in 2017 that were made without a democratic process and the subsequent authoritarian practices, which contradicted the principles of constitutionalism, we have valid reasons to be skeptical about a “new” constitution led by the AKP-MHP alliance.
Our concerns are significantly heightened by the fact that in the same speech, the objective is to establish a constitution that is “aligned with the fundamental values and red lines of the nation” as well as the (AKP’s) “Century of Turkey goal.” Furthermore, the unconventional model they refer to as the “presidential government system” is depicted as “the culmination of our two-century-long quest for a governance system.” In this context, one might apprehend that the emphasis on a “national” constitution in the same speech aims to create a constitution grounded in conservative family values, potentially resulting in the weakening of gender equality and making it a norm for women to cover their heads. It is also highly probable that other objectives of this “national” constitutional initiative include further bolstering the presidency (potentially by granting Mr. Erdoğan the right to run for office indefinitely) and rendering the Constitutional Court, whose supervisory role has already been substantially diminished, completely powerless.
* Prof. Dr. Mustafa Erdoğan
The Yalçınkaya Decision of the European Court of Human Rights
The European Court of Human Rights has rendered a pivotal decision regarding Yüksel Yalçınkaya’s application concerning the convictions resulting from trials conducted in the aftermath of the coup attempt, where he was accused of being a member of a terrorist organization. This decision, issued by the Grand Chamber, sets a precedent for similar trials and holds the potential to alter their outcomes. The applicant, a teacher, was sentenced to 6 years and 3 months of imprisonment on charges of membership in an armed terrorist organization. These charges were based on allegations of his use of the ByLock application, financial transactions with Bank Asya, affiliation with an association and a trade union that had been dissolved by a statutory decree, and his participation in chat meetings.
The applicant contended that the actions for which he was accused were not considered criminal at the time they occurred, and that the laws had been arbitrarily interpreted too broadly, resulting in the criminalization of his lawful actions. Consequently, he argued that this violated the principle of “no crime or punishment without a prior law,” as stipulated in Article 7 of the Convention.
Furthermore, he alleged breaches of his right to a fair trial (Article 6) as he was unable to mount an effective defense in response to the charges against him. This inability stemmed from the utilization of unlawfully acquired evidence in the proceedings and the failure to provide him with evidence, notably the unprocessed ByLock data. He also asserted that his right to the confidentiality of communication (Article 8) was violated, as the collection of ByLock data occurred without a judicial order and unlawfully. Lastly, he contended that his freedom of association (Article 11) was infringed upon, as his membership in trade unions and associations was used as evidence in his conviction.
The Court, with respect to Article 7, emphasized that the principle of legality of crimes and penalties requires that the definition of which acts constitute a crime should be previously established by law and that these rules should be consistently applied to individuals in a manner that ensures foreseeability. In this context, the Court determined that the offense of being a member of an armed terrorist organization, which led to the applicant’s conviction, was regulated by the Turkish Penal Code (Article 314/2), the Anti-Terror Law (Article 3,7), and the jurisprudence of the Court of Cassation.
Accordingly, individuals who, with the purpose of achieving political objectives through the use of force, violence, and intimidation methods, knowingly and willingly become part of the hierarchy of an organization, surrendering their will to the organization, and whose actions contribute to the goals and interests of the organization, will be subject to punishment for membership in the organization. This is subject to the condition that their actions meet the requirements of continuity, diversity, and intensity regarding their contribution to the organization’s goals and interests.
The Court, in its examination, assessed whether the applicant’s punishment for membership in a terrorist organization was foreseeable within the framework of the standards set by Turkish law, in accordance with the requirements of Article 7. The Government contended that the fundamental basis for the applicant’s conviction was his use of the ByLock application, while considering other evidence as supportive in nature.
Within this context, the Government argued that the ByLock application was exclusively used by members of the organization as an encrypted communication platform. Consequently, they maintained that the mere use of the application constituted evidence of membership in the organization.
In its assessment, the Court examined the foreseeability of the applicant being charged with membership in a terrorist organization based on his use of the mentioned application. It is worth noting that, at the time the applicant used this application, there was no court decision declaring the structure referred to as ‘cemaat’ as a terrorist organization.
The Court determined that the domestic courts and the government failed to provide evidence that solely downloading the application was indicative of the applicant’s deliberate submission to the hierarchy of a terrorist organization. Notably, at the time in question, there were no known acts of violence associated with the organization, and no court decision had been issued. Furthermore, they did not demonstrate that he had embraced the organization’s concealed objectives and methods of force and violence with intent.
Within this context, the Court concluded that accepting the mere act of downloading the application as conclusive evidence, without considering the content of messages or the identities of message recipients, effectively transformed the ByLock application into both a material and moral element of the crime of membership in a terrorist organization. This led to a presumption of guilt, preventing individuals from effectively responding to the accusations against them. Consequently, the Court determined that such a judicial practice fell short of ensuring the foreseeability required by Article 7, resulted in arbitrary punishment of individuals, and thus constituted a violation of Article 7. Meanwhile, the Court has clearly delineated the boundaries of its jurisdiction to evaluate evidence in every paragraph of the judgment, and the government’s objections in this regard are baseless. Additionally, the Court rejected the government’s assertion that the use of the ByLock application was not a criminal act but rather evidence of membership. Instead, it determined that in Turkish legal practice, downloading the application was employed as a substitute for both the material and moral components of the offense.
With respect to the right to a fair trial, the Court determined that the applicant’s rights, as guaranteed by Article 6, were violated. This violation arose from the failure to provide the applicant with the raw ByLock data during the proceedings, rendering him unable to effectively contest the allegations against him, along with various procedural shortcomings.
Simultaneously, the Court did not find it necessary to separately examine the applicant’s complaint concerning the unlawful acquisition of ByLock data and its violation of his right to privacy of communication.
Lastly, the Court concluded that the applicant’s punishment for his membership in associations and trade unions that had been disbanded by the Decree Law constituted a violation of his right to freedom of association, as guaranteed under Article 11 of the Convention. This judgment is expected to significantly influence concluded and ongoing proceedings related to ‘FETÖ/PDY.’ The reason behind this influence lies in the Strasbourg Court’s determination that the violations it has identified are of a systemic nature. It has emphasized that its findings regarding Articles 6 and 7 will not only impact the roughly 8,500 pending applications but may also extend to proceedings involving around 100,000 ByLock users, potentially affecting similar allegations.
In terms of the right to a fair trial, the Court concluded that a violation of the right to a fair trial as defined in Article 6 occurred. This violation stemmed from the non-disclosure of the raw ByLock data to the applicant during the proceedings, which hindered his ability to effectively challenge the allegations against him, along with other procedural shortcomings.
These findings by the Court should be taken into consideration in ongoing proceedings to rectify practices that lead to serious violations of the Convention. For finalized decisions, they should serve as grounds for potential retrials, opening a path for such proceedings. Failing to do so will not only exacerbate grievances but also harm Turkey’s relations with the Council of Europe and the broader international community. If the judgment’s requirements are not met, the entire society will bear the brunt of the adverse consequences.
* Ali Rıza Çoban – Constitutional Lawyer
Eight Parliamentary Proceedings Referred to Parliament
Last week, the new legislative year commenced in the Grand National Assembly of Turkey. In conjunction with the inauguration of the Turkish Grand National Assembly, parliamentary proceedings aimed at lifting the immunity of 8 Members of Parliament were forwarded to the Office of the Parliament’s Presidency. These proceedings involve three deputies from the Green Left Party, two from the CHP, one from the Democratic Party, and two from the MHP.
Notably, among the proceedings is one initiated by the Ankara Chief Public Prosecutor’s Office against Sezgin Tanrıkulu, with the request to remove his immunity on charges of “public incitement to hatred and hostility” and “publicly denigrating the military and security organization of the state.” The Chief Public Prosecutor’s Office sent the summary of this case to the Ministry of Justice, which subsequently transmitted it to the Presidency of the Republic for further submission to the Grand National Assembly of Turkey.
If these proceedings are submitted to the Constitutional and Justice Joint Commission of the Grand National Assembly of Turkey and the Commission decides to add them to the agenda, a Preparatory Commission will be constituted for each case.Once the Preparatory Commission reaches a decision, the Mixed Commission is obliged to review this decision within a one-month period. The Mixed Commission determines whether to remove the immunity or to defer the prosecution until the conclusion of the parliamentary term. If the Joint Committee chooses to revoke the immunity, the case will be deliberated in the General Assembly of the Grand National Assembly of Turkey, and the final decision will be made by the MPs.
The decision to lift the immunity in the General Assembly is determined by the votes of an absolute majority of those present, and this number cannot be less than 151 under any circumstances.
Once the Preparatory Commission reaches a decision, the Mixed Commission is obliged to review this decision within a one-month period. The Mixed Commission determines whether to remove the immunity or to defer the prosecution until the conclusion of the parliamentary term. If the Joint Committee chooses to revoke the immunity, the case will be deliberated in the General Assembly of the Grand National Assembly of Turkey, and the final decision will be made by the MPs.The decision to lift the immunity in the General Assembly is determined by the votes of an absolute majority of those present, and this number cannot be less than 151 under any circumstances.
It’s worth mentioning that this process didn’t lead to the swift removal of immunity for the concerned MPs, given that there are over 1000 pending proceedings in Parliament. Nonetheless, it’s feasible to expedite the process by prioritizing the cases of certain MPs. This is largely dependent on which MPs and parties the ruling party and its allies in the committees want to punish.
One of the longstanding issues in Turkey, which has evolved into both a threat and a tool for the political authorities to penalize their adversaries, is the attempts to revoke parliamentary immunity. In recent years, with the diminishing independence of the judiciary, there has been a significant surge in the number of cases referred to Parliament. Some parties, particularly the ruling party, have made aggressive use of this method. Notably, in the past two terms, the number of deputies who lost their parliamentary positions is notably high. For instance, 8 MPs from the 26th term and 5 from the 27th term were stripped of their parliamentary mandates. Additionally, there were MPs who were not released and were prevented from participating in legislative activities despite being elected as MPs, as seen in the recent case of Can Atalay.
In Turkey, parliamentarians face systematic efforts to revoke their immunity, which in turn erodes the foundations of the rule of law and democratic institutions and processes. This is because MPs, operating under the specter of losing their immunity, may find their ability to function effectively in parliament significantly compromised, thereby limiting their capacity to adequately represent the demands of their constituents.
Democratic systems thrive on the inclusion of diverse voices and viewpoints. The removal of parliamentary immunities poses a direct threat to the pluralism principle of democracy, particularly by stifling dissenting voices. Moreover, the arbitrary and subjective nature of this process undermines the rule of law. The perception that justice is not administered impartially and independently can further deteriorate the already diminished public trust in the justice system.
* Ömer Faruk Şen – Ph.D. – Missouri University
Inflation Projections in the Central Bank Governor’s Presentation
Hafize Gaye Erkan, the Governor of the Central Bank of the Republic of Turkey (CBRT), delivered a presentation before the Planning and Budget Committee of the Grand National Assembly of Turkey on October 3, 2023. The presentation covered an analysis of the global economy, inflation, and monetary policies.(2)
A review of the presentation published on the CBRT’s website reveals a comprehensive evaluation of global economic data. This section of the presentation includes an in-depth assessment of data points such as global growth, the Purchasing Manager Index (PMI), and commodity prices.
The Central Bank, benefiting from a wealth of knowledge and experience within its team of economists, should approach the analysis of these fundamental indicators in a systematic and rational manner.
The section of the presentation concerning inflation in Turkey commences by discussing the trends and components of monthly inflation figures. A key emphasis in this section is the ongoing strength of domestic demand. The presentation further delves into the analysis of the Industrial Production Index and Retail Sales Volume Index, illustrating a stable supply alongside robust demand. It was highlighted that an overly strong domestic demand can eventually disrupt the current account balance. Additionally, the Central Bank noted that the pass-through effect of foreign exchange rate increases on inflation has been steadily growing. As a result, fuel prices have risen, further contributing to the inflation spread. Another issue of direct relevance to our daily lives was addressed in this part of the presentation: tax increases. However, despite acknowledging that tax hikes lead to increased inflation, the Central Bank chooses to use the term “tax adjustments.”
Acknowledging the issues is undeniably a crucial element of the presentation. However, the third part of the presentation, the “monetary policy section,” is where the Central Bank truly articulates its core message. Hafize Gaye Erkan stressed the concept of “tightening” both in the presentation and during the Q&A session. The CBRT underlines two significant components of tightening: quantitative tightening and credit tightening. The primary goal of the CBRT is to reduce domestic demand by sterilizing excess liquidity, essentially reducing the monetary base in the market and offering loans in a highly selective manner.
Indeed, credit growth plays a crucial role in attaining their objectives, and the presentation indicates that credit growth is already in the process of stabilizing. To achieve quantitative tightening and stabilize the Turkish Lira’s value, the exit from FX-Protected Deposits holds significant importance. The presentation explicitly notes that as of September 22, 2023, FX-Protected Deposits have seen a decrease over the last 4 weeks, with savers shifting towards Turkish Lira time deposits.
The reference to the rise in the Central Bank’s reserves and the reduction in Turkey’s credit risk premium (CDS – Credit Default Swap) is another significant highlight in the presentation. However, it’s important to note that the presentation focused on gross reserves, which include foreign currencies obtained through swaps. The crucial aspect of net reserves, excluding swaps, which is closely monitored by the markets, was not mentioned.
In conclusion, the general assessment at the end of the presentation indicates that there will be a transition period for disinflation until June 2024, and the disinflation process will conclude in the subsequent year, by June 2025. This period is referred to as the stabilization period.
1 Yüksel Yalçınkaya/Türkiye [BD], no. 15669/20, 26.09.2023, şuradan erişilebilir: https://hudoc.echr.coe.int/eng?i=001-227636