MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1428/H46-36

9 March 2022

1428th meeting, 8-9 March 2022 (DH) Human rights   H46-36 Öner and Türk group (Application No. 51962/12), Nedim Şener group (Application No. 38270/11), Altuğ Taner Akçam group (Application No. 27520/07) and Artun and Güvener group (Application No. 75510/01), Işıkırık group (Application No. 41226/09) v. Turkey Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)90, DH-DD(2022)52, DH-DD(2020)536, DH-DD(2017)699, H/Exec(2020)6, CM/ResDH(2021)108, CM/ResDH(2021)110, CM/Del/Dec(2021)1406/H46-35

 

Application	Case	Judgment of	Final on	Indicator for the classification
51962/12	ÖNER AND TÜRK GROUP (list of cases CM/Notes/1428/H46-36-app)	31/03/2015	30/06/2015	Complex problem
38270/11	NEDİM ŞENER GROUP (list of cases CM/Notes/1428/H46-36-app)	08/07/2014	08/10/2014	Structural and complex problem
27520/07	ALTUĞ TANER AKÇAM GROUP (list of cases CM/Notes/1428/H46-36-app)	25/10/2011	25/01/2012	Complex problem
75510/01	ARTUN AND GÜVENER GROUP (list of cases CM/Notes/1428/H46-36-app)	26/06/2007	26/09/2007	Complex problem
41226/09	IŞIKIRIK GROUP (list of cases CM/Notes/1428/H46-36-app)	14/11/2017	09/04/2018	Complex and structural problem

Case description

These groups mainly concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (violations of Article 10).

The Öner and Türk group^[1] concerns unjustified convictions of the applicants mainly based on Article 6 § 2 (printing of statements made by a terrorist organisation) and Article 7 § 2 (propaganda in favour of an illegal organisation) of the Anti-Terrorism Law; Article 215 (praising an offence or an offender) and Article 216 (provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences) of the Criminal Code (violations of Article 10).

The Nedim Şener group focuses on the pre-trial detention of journalists on serious charges, such as aiding and abetting a criminal organisation or attempting to overthrow the constitutional order, without relevant and sufficient reasons.^[2] In Mehdi Tanrikulu (No. 2) case, the Court found inter alia that the applicant has been unlawfully placed in pre-trial detention, since the offence with which he was charged, namely the dissemination of propaganda in favour of an illegal terrorist organisation, had - wrongly - been considered one of the offences listed in Article 100 of the Code of Criminal Procedure for which the reasons justifying the detention were established by legal presumption (violations of Articles 5 and 10).

The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (violations of Article 10).

The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of theircriminal convictions for insulting public institutions, officials and the President under Articles 125 and 299^[3] of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.) (violations of Article 10).

The Işıkırıkgroup concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership. The Court criticised in particular the wording of the provisions and their extensive interpretation by domestic courts which did not provide sufficient protection against arbitrary interferences by the public authorities (§ 67) and therefore lacked foreseeability and had a chilling effect (violations of Articles 10 and 11).

Status of execution

Last examinations by the Committee: At its 1406^th meeting (June 2021) (DH), the Committee adopted an interim resolution in the Öner and Türk group of cases, inter alia, strongly urging the authorities to amend Article 301 of the Criminal Code in light of the Court’s clear case-law and to consider further legislative changes of the Criminal Code and the Anti-Terrorism Law to clarify that the exercise of the right of freedom of expression does not constitute an offence. It urged them also to send a high-level political message, to support the good practice of the higher courts, underlining that freedom of expression is valued in Turkish society and that the criminal law is not intended to be used as a tool to restrict it. The Committee furthermore urged the authorities to provide detailed statistical information covering the last five years showing the total number of prosecutions and convictions for the offences in these groups of cases and also, information on the number of journalists prosecuted, convicted and held in pre-trial and post-conviction detention, with details of the allegations involves (for more details see CM/ResDH(2021)110).

During its examination of the Işıkırıkgroup of cases at its 1406^th meeting (June 2021) (DH), the Committee stressed again that neither the legislative amendments adopted so far, nor the developments in case-law, remedy the fundamental problem with Article 220 §§ 6 and 7 of the Criminal Code as identified by the Court. It urged therefore the authorities to consider more extensive legislative solutions without further delay and also to submit more case-law samples of domestic courts. The Committee noted with interest that the Turkish Constitutional Court has decided to apply a pilot judgment procedure to a case pending before it concerning the application of Article 220 § 6 of the Criminal Code with the aim to identifying whether this case resulted from a structural problem in the application of this provision.

It invited the authorities to submit information on the conclusions of the Constitutional Court in this case and on whether a similar approach has been followed by that court concerning Article 220 § 7 of the Criminal Code. Moreover, it urged the authorities to provide statistical or any other available information on the number of persons charged and sentenced under Article 220 §§ 6 and 7 over the last five years and the types of conduct involved.

In both the Öner and Türk and Isirikik groups, the Committee encouraged the authorities to adopt concrete measures in the framework of the implementation of the new Human Rights Action Plan addressing the Court’s findings in these groups of cases and to strengthen freedom of expression and assembly in general and expressed the readiness of the Council of Europe to provide assistance to this end.

Information submitted by the Turkish authorities: The information submitted in response to the Committee’s last interim resolution and decisions is summarised below (action reports for Öner and Türk groups: DH-DD(2022)90, DH-DD(2022)52, action plan for Işıkırık group: DH-DD(2022)34):

Individual measures: the summary of the information on these measures is presented in H-Exec(2022)6.

General measures: The authorities reiterated their previous submissions concerning the legislative amendments made in respect of these groups of cases between 2008 and 2019, and 2012 and 2013. In summary, they stated that the necessary measures to prevent new violations have been taken, and that a Convention-compliant attitude has been developed by the judiciary. In support of their position, the authorities provided sample judgments delivered in the period 2015-2021 by the high courts, including the Constitutional Court, the Court of Cassation and various regional courts of appeal (some of which had already been provided prior to the last examination of these groups in 2021 and some of some of which are new).

With respect to the Işıkırık group, the authorities provided information on the pilot judgment of the Constitutional Court delivered on 10 June 2021 in the case of Hamit Yakut (appl. No. 2014/6548), which concerns the application of Article 220 § 6 of the Criminal Code. According to this information, the Constitutional Court held that Article 220 § 6 did not meet the requirements of the “quality of law” and found a violation of Article 34 of the Constitution (corresponding to the Article 11 of the Convention), which stemmed from a structural problem. The Constitutional Court transmitted its judgment to the Parliament to find a solution. The authorities added that the Constitutional Court has not so far initiated a pilot judgment procedure concerning Article 220 § 7 of the Criminal Code.

As regards the Nedim Şener group of cases, the authorities reiterated that no database is available distinguishing convicts and detainees on the basis of their professions, and that there is therefore no statistical information on the number of detained or convicted journalists. The authorities also reiterated that nobody is held in penitentiary institutions due to their journalistic activities but for their criminal activities. They argued that anyone working at a media outlet could claim a journalist ID. They indicated that 32 of the persons referred to in certain circles, including some entities referred to by the Council of Europe bodies as imprisoned journalists were in fact convicted for offences such as the use of the ByLock application, robbery, opening fire on and killing of security forces, vandalism, bombing of various buildings and vehicles, etc. According to the authorities, only five of them were found guilty of being a member of a terrorist organisation on the basis of, among other evidence, their expressions which incited violence and glorified terrorism, committing a crime, therefore falling outside the scope of freedom of expression.

With respect to the Öner and Türk groups, the authorities provided information on the number of decisions rendered in 2020 by the public prosecutors’ offices at the investigation stage and of the decisions rendered by the criminal courts at the criminal proceedings stage under the Articles 125, 220, 299, 301, 309, 311, 312 and 314 of the Criminal Code and under the Anti-Terrorism Law. No statistical information covering the last five years reflecting the total number of prosecutions and convictions has been provided. As regards the Işıkırık group, the authorities provided statistical information on the number of decisions rendered by the public prosecutors’ offices at the investigation stage and of the decisions rendered by the criminal courts at the criminal proceedings stage under the Article 220 of the Criminal Code from 2016 to 2020. Concerning the cases examined under Artun and Güvener group, the authorities indicated that in 2020 alone, a total of 946,522 criminal investigations were conducted under Article 125 of the Criminal Code, whereas 31,297 were conducted under Article 299.

The authorities indicated, in addition, that the relevant legislation concerning the grounds for pre-trial detention had been examined within the context of Demirel group of cases and found sufficient by the Committee of Ministers, since the Committee closed its supervision of this group in 2016. In this regard, the authorities also provided information on the 4^th Judicial Package of 8 July 2021, which according to them introduced safeguards as to the detention under certain articles of the Code of Criminal Procedure. They indicated further that the current legal safeguards concerning the pre-trial detention are Convention-compliant.

The authorities further provided information on other measures, projects and awareness-raising activities.

Finally, they quoted texts from the high-level politicians’ speeches, including by the President and the Minister of Justice, which they consider provide a response to the latest decisions of the Committee calling for a high-level political message as regards the protection of the freedom of expression.

Latest Rule 9.2 submissions by MLSA (Media and Law Studies Association) (DH-DD(2022)116-rev) and by the İFÖD (Freedom of Expression Association) on the cases of Artun and Güvener
(DH-DD(2022)120) and Işıkırık (DH-DD(2022)127) and reply from the authorities

MLSA argued that, despite the amendments introduced to individual articles of the Anti-Terrorism Law and the Criminal Code, with the alleged aim of narrowing their interpretation, prosecutors and judges in practice continue to interpret the articles widely, in particular Article 299 of the Criminal Code (insulting the President). As of 22 December 2021, at least 48 journalists and media employees were imprisoned, and officials at the highest level continue to defy international standards with their statements against journalists. MLSA provided monitoring reports on trials related to freedom of expression that took place in various cities in Turkey between January and November 2021, in which 42% of the defendants were journalists. 58% of the charges faced by these journalists related to alleged offences of terrorism, followed by insulting the President (6%). İFÖD agreed that there were a high number of prosecutions under Article 299 in 2020, and that the case-law is far from providing any effective legal safeguard against the broad application of the provision. The NGO submitted statistical information for the period 2014-2020, according to which the number of investigations under Article 299 was 682 in 2014, whereas it was 31,297 in 2020. It further indicated that the high-level political messages referred to by authorities are not sufficient and unequivocal, and referred to other statements made by high-level officials.

In their submission as regards the Işıkırık group of cases, İFÖD stated, in particular, that the Constitutional Court’s pilot judgment was published in the Official Gazette on 3 August 2021 and that there were no concrete signs of progress in terms of aligning the relevant legislative provisions with the Constitutional Court’s findings. They also claim that the higher courts continue to ignore the European Court’s jurisprudence and disregard the pilot judgement of the Constitutional Court.

In response, the authorities stated that the impugned provisions of the Criminal Code and Anti-Terrorism Law were either amended to ensure the compliance of the Court’s findings or that domestic courts started to interpret them in a Convention-compliant manner. They also stressed that the statistics provided in the NGO communications were unreliable.

Analysis by the Secretariat

-       Individual measures

Öner and Türk group: The authorities could be invited to provide information on the outcome of the proceedings before the Constitutional Court in Selahattin Demirtaş (No. 3), and the reopened proceedings in Aktan, Bakır, Güllü, Mart and Others and Kınık and on whether the applicants have requested the reopening of the proceedings in the cases of Adır and Others and İmrek.

Nedim Şener group: It is recalled that in these cases the Court found violations of Articles 5 and 10 of the Convention arising from the pre-trial detention of the applicants for information and criticism of the government published in the course of their journalistic work. Although none of the applicants is currently in pre-trial detention, most of them are journalists and continue to suffer a chilling effect on their freedom of expression. Therefore, the implementation of effective general measures will be also relevant to ensure the enjoyment of the applicants’ rights under Article 10. This is why no closure is proposed for the repetitive cases of this group.

In addition, the authorities could be invited to clarify whether the request for reopening in the Mehdi Tanrıkulu (No. 2) case concerns the applicant’s prosecution for which the European Court found a violation of Article 10 (§ 67 of the judgment) and if this is so, to inform the Committee on the outcome of this request.

Altuğ Taner Akçam group: No further individual measures are required in the repetitive cases of this group (see “proposal for closure of repetitive cases” below).

Artun and Güvener group and Işıkırık group: Information is awaited on the outcome of the proceedings before the Constitutional Court in the case of Buluş and Others and reopened proceedings in the Uzan, Seğmen, Ataç, Işıkırık, Imret (No. 2), Bakır and Others, Daş and Kılınç cases, as well as on the reopening of the proceedings in Kerçin, İlyas Gündüz and Mustafa Çelik cases.

Proposal for closure of repetitive cases: In 15 cases, no further individual measures are required as, inter alia, the applicants have been acquitted following the reopening of the proceedings or have failed to request reopening (for more details see H/Exec(2022)6). It is proposed, in accordance with the Committee’s practice, to close the examination of these cases. A draft final resolution is appended.

-       General measures

Assessing the continuing scale of the problem: need for statistical data

As it was recalled in the interim resolution adopted by the Committee in 2021 in the Öner and Türk groups of cases, the problem of the disproportionate use of the criminal and anti-terror law in Turkey for expressing critical or unpopular opinions has been pending before the Committee in relation to various judgments for over 20 years. In its 2021 Annual Report,^[4] the Court indicated that it had found a total of 418 violations of Article 10 of the Convention against Turkey, 31 of them in 2021 alone.

In the beginning of 2022, the Council of Europe’s Parliamentary Assembly adopted a resolution calling on Turkey to implement the Assembly’s previous resolution of 22 April 2021,^[5] in which it reiterated its concerns about restrictions to freedom of expression, and stated that broad scale restrictions imposed on the activities of journalists, writers, lawyers, academics, human rights defenders and critical voices continued to have a negative effect on the exercise of their freedoms and lead to self-censorship.^[6]

The European Commission’s 2021 Report on Turkey^[7] also stressed that serious backsliding continued on freedom of expression. The Commission noted that legislation and its implementation, especially related to national security and anti-terrorism provisions, continued to contravene the Convention and other international standards and to diverge from the case-law of the Court.

To allow the Committee to make an accurate assessment of the present situation, the Committee has repeatedly invited the Turkish authorities to provide detailed statistical information showing the total number of prosecutions and convictions for the offences in the Öner and Türk groups of cases covering the last five years, as well as on the number of journalists prosecuted, convicted and held in pre-trial and post-conviction detention, with details of the prosecutions and convictions.

In this connection, the information provided in the Işıkırıkgroup, covering the last five years could be noted with interest. However, this information cannot meaningfully inform the assessment to be made on the type of conduct involved, as it only contains the number of decisions of prosecution authorities and courts on the application of Article 220 §§ 6 and 7 of the Criminal Code (aiding and abetting an illegal organisation), which could also comprise cases unrelated to the exercise of the right to freedom of expression.

Stressing again that statistical information is crucial to allow the Committee to assess the current situation, the authorities could be strongly urged to supplement the statistical information provided with details on the type of conduct involved and to provide detailed statistical information covering the last five years for the offences in these groups of cases.

The information provided by the authorities with respect to the Nedim Sener group on the number of journalists convicted for expressions of statements opinion is inconsistent with the figures provided by other relevant sources. In particular, the number of cases under the Committee’s supervision has almost tripled since the last examination of the group in June 2021. Eleven out of the 15 cases in this group were lodged with the Court in or after 2017, by journalists who were placed in detention after the coup attempt.[8] The fact that there are currently 27 applicants in this group and the findings of the European Court concerning the extensive interpretation of criminal law to detain journalists[9] demonstrate the serious nature of the problem.

            Legislative amendments

In their submissions in response to the Committee’s last decisions and the interim resolution CM/ResDH(2021)110, adopted in June 2021, the authorities referred again to the legislative amendments made between 2008 and 2019, which have been reviewed and considered insufficient by the Committee in its previous examinations.

Against the above background, the Committee could note with grave concern that despite its repeated calls, including in its last decisions in the Isikirik group and in the interim resolution adopted in the Öner and Türk group of cases in June 2021, and the worrying indications about the present situation revealed by the information available to it, the legislative amendments necessary to remedy the shortcomings identified by the Court have not been taken.

As regards the Öner and Türkgroup of cases, the Committee strongly urged the authorities to consider further legislative changes to the Criminal Code and the Anti-Terrorism Law to clarify that the exercise of the right of freedom of expression does not constitute an offence. In previous examinations, the Committee welcomed the amendment of Article 7 of the Anti-Terrorism Law of October 2019 which provided that “expressions of thought that do not exceed the boundaries of reporting and those made for the purpose of criticism shall not engage criminal activity”, considering this an improvement towards the limitation of the application of the provision. Therefore, the authorities could be encouraged to consider extending this amendment to other articles of the Anti-Terrorism Law and the Criminal Code which have led to violations of the right to freedom of expression, to clarify that the exercise of the right to freedom of expression does not constitute an offence.

As regards the Altuğ Taner Akçamgroup, despite the Committee’s repeated calls and the Court’s clear case-law indicating that Article 301 of the Criminal Code (publicly denigrating the Turkish Nation, the organs and institutions of the State) is too broadly drafted for its application to be foreseeable, the Turkish authorities have not taken any steps towards amending this provision. In view of the Committee’s previous decisions, the authorities could, once again, be strongly urged to amend this provision in light of the Court’s clear case-law.

As regards Artun and Güvener group of cases concerning the offence of insulting public officials (Article 125), including the President (Article 299), the number of prosecutions and convictions in 2020 under these provisions of the Criminal Code (see above) are worrying. Considering the emerging European consensus towards decriminalisation of defamation of the Head of State[10], the Committee could urge the authorities to consider amending Article 125 and abrogate Article 299 of the Criminal Code in accordance with the Court’s case-law.

As regards the Isikirik group, the Constitutional Court’s pilot judgment in the case of Hamit Yakut, concerning the application of Article 220 § 6 of the Criminal Code, is an encouraging development. The judgment is currently pending before the National Assembly for the required legislative amendments. The Committee could therefore welcome the Constitutional Court’s judgment and urge the Turkish authorities to adopt the necessary legislative solutions with respect to Article 220 §§ 6 and 7 of the Criminal Code to comply with the findings of the Constitutional Court and the European Court without further delay.

The authorities could be also urged to introduce concrete steps in the framework of the implementation of the Human Rights Action Plan of 2021 with regard to all of the above legislative amendments required for execution of these judgments.

            Judicial practice – pre-trial detention

As regards the Nedim Şener group of cases, concerning mainly the placing of journalists in pre-trial detention without sufficient or relevant reasons^[11], the number of cases under the Committee’s supervision has almost tripled since the last examination of the group in June 2021. Eleven out of the fifteen cases in this group were lodged with the Court in or after 2017, by journalists who were placed under detention after the coup attempt.[12]

Adoption of the Fourth Judicial Package on 8 July 2021, and in particular the amendment of Article 100 of the Code of Criminal Procedure which introduced the requirement of concrete evidence justifying strong suspicion to detain persons also for offences under the so-called catalogue is welcome. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law, but still arbitrary and thus contrary to the Convention. Further measures are therefore required to ensure that judicial authorities rely on concrete evidence justifying strong suspicion when placing individuals in detention. The Committee might wish to strongly urge the authorities to take such measures and to provide information on the current judicial practice.

            Judicial practice – substantive criminal law

The sample judgments provided showing the continuing good practice of the higher courts in applying the relevant substantive provisions of the criminal law in accordance with Convention principles are noted with interest as in previous examinations of the Committee. However, as evidenced by the indications presented above and revealed by the number of prosecutors’ and courts’ decisions provided by the authorities, it appears that the prosecutors and the lower courts do not follow the case-law of the higher courts and continue to initiate prosecutions or convict journalists and others, for activities that should be tolerated as the exercise of freedom of expression as protected by Article 10.

The authorities could also be encouraged to continue with training of judges and prosecutors on the application of criminal law in compliance with the Turkish case-law of the higher courts and continue to provide sample judgments for all these groups. Such measures, however, cannot alleviate the need for the above explained legislative amendments required in some of these cases. Information on the relevant practice of prosecutors and lower courts will be also useful to allow the Committee to assess the present situation. 

In this context, the examples of speeches from the high-level politicians, including the President and the Minister of Justice as regards the protection of the freedom of expression are noted and the authorities could be urged to put an emphasis on delivering consistent high-level political messages to underline that freedom of expression and the work of journalists are valued in Turkish society and that the criminal law should not be used in such a way to restrict it.

Financing assured: YES