On 28 May 2019, the Human Rights Committee of the International Covenant on Civil and Political Rights (ICCPR) delivered its opinion on the detention of İsmet Özçelik, and Turgay Karaman following the 15 July 2016 attempted coup d’état. Both İsmet Özçelik and Turgay Karaman were detained and forcibly removed from Malaysia under Malaysian anti-terrorism legislation by individuals acting under the control or instructions of Turkish authorities. No extradition hearing was held and there was no judicial decision to that effect taken. Upon return to Turkey, İsmet Özçelik and Turgay Karaman were held incommunicado and claimed that they were at risk of being tortured and ill-treated in violation of Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment), 9 (right to liberty and security of person), and 10 (conditions of deprivation of liberty) of the Covenant. Under Article 14, the authors have further claimed their right to a fair trial had been violated as they were not provided with prompt legal assistance, nor were they informed of the charges against them.Read More
The Turkey Litigation Support Project, together with 24 prominent lawyers' and human rights organisations, sent an urgent action letter (available here) to the UN Special Rapporteurs this week expressing serious concerns regarding the arbitrary detention and long-term imprisonment of 18 human rights lawyers from Halkın Hukuk Bürosu (HHB, the Peoples’ Law Office) and Ҫağdaş Hukukçular Derneği (ҪHD, the Progressive Lawyers Association) in violation of fair trial principles and of their right to freedom of expression.
The urgent action letter requests the Special Rapporteurs to urge the Turkish authorities to facilitate the immediate acquittal of lawyers Ayşegül Çağatay, Yağmur Ereren, Didem Baydar Ünsal, Yaprak Türkmen, Ahmet Mandacı, Zehra Özdemir, Ebru Timtik, Özgür Yılmaz, Behiç Aşçı, Sukriye Erden, Selçuk Kozağaçlı, Suleyman Gokten, Aytaç Ünsal, Engin Gökoğlu, Aycan Çiçek, Naciye Demir, Ezgi Cakir and Barkın Timtik; and the urgent release of those in detention pending appeal. We further requested the Special Rapporteurs to urge the Turkish authorities to:
stop all forms of harassment, including judicial harassment, against these individuals as well as other lawyers and human rights defenders in Turkey, and allow them to perform their professional and lawful functions without intimidation or improper interference
immediately stop using oppressive methods against individuals, particularly lawyers and other human rights defenders, who are critical of the human rights violations perpetrated by the State authorities including the security forces
ensure the independence of the judiciary by law and practice and to prevent judges, prosecutors and lawyers from undue interferences
Ayse Bingol Demir, Turkey Human Rights Litigation Support Project, London
Jérôme Gavaudan, President, Conférence des Bâtonniers de France et d’Outre-Mer
Andrea Mascherin, President, Consiglio Nazionale Forense, Italy
José de Freitas, President, The Council of Bars and Law Societies of Europe
Martine Jacquin, Présidente, Défense Sans Frontière-Avocats Solidaires
Thomas Schmidt, Secretary General, European Association of Lawyers for Democracy and World Human Rights
Robert Sabata Gripekoven, President, European Democratic Lawyers - Avocats Européens Démocrates
Newal Ciftci, President, Fair Trial Watch
Hans And Symone Gaasbeek, Secretary, The Foundation Day of The Endangered Lawyer
Bill Bowring, Joint International Secretary, Haldane Society of Socialist Lawyers
Evelyn Dürmayer, representative at the UN Vienna, International Association of Democratic Lawyers
Tony Fisher, Chair Human Rights Committee, The Law Society of England & Wales
Phon van den Biesen, President, Lawyers for Lawyers
Gail Davidson, Director, Lawyers’ Rights Watch Canada
Saniye Karakas, London Legal Group
Edre Olalia, Secretary General, National Union of Peoples' Lawyers, Philippines
Maria Hessen Jacobsen, HRC, Norwegian Bar Association
Jerôme Dirou, Bâtonnier, Ordre des Avocats au Barreau de Bordeaux
Alain Cockenpot, Bâtonnier, Ordre des Avocats au Barreau de Douai
Farid Hamel, Bâtonnier, Ordre des Avocats au Barreau de Lyon
Jean-Marie Chabaud, Bâtonnier, Ordre des Avocats au Barreau de Nimes
Basile Ader, Vice Bâtonnier, Ordre des Avocats au Barreau de Paris
Franziska Nedelmann, Board Member, Republikanischer Anwältinnen- und Anwälteverein
Hein Vogel, Chariman, Vereniging Sociale Advocatuur, Nederland
On 9 May 2019 the Turkish Constitutional Court, as the last instance domestic court for reviewing human rights violation complaints, issued a judgment in a case concerning the criminal conviction of the applicant, Ayşe Çelik, for her statement made on a TV programme.
On 8 January 2016, the applicant, a teacher from Diyarbakir, called into a popular TV show and criticised ongoing violence and the death of civilians during counter-terrorism operations taking place in south-east Turkey. In a part of her comments, she stated " [a]re you aware of what is going on in the east, in the south-east of Turkey? Here, unborn children, mothers and people are being killed. Be sensitive as an artist and human being. See, hear and lend us a hand. Do not let those people those children die; do not let the mothers cry anymore. People are struggling with starvation and thirst, babies and children too. Don’t remain silent.”
In response to this statement, the Bakirkoy Public Prosecutor filed an indictment against the applicant with a criminal charge of disseminating propaganda in support of the PKK pursuant to Article 7(2) of the Anti-Terror Law. On 26 April 2017, the Bakirkoy 2nd Heavy Penal Court convicted the applicant and sentenced her to one year and three months imprisonment. In its decision the first instance court held that the applicant had justified and legitimised the actions of a terrorist organisation by presenting the state’s military operations against a terrorist organisation as actions causing the death of innocent people, amounting to propaganda in support of PKK.
The Istanbul Regional Court of Justice rejected the applicant’s appeal on the same grounds with a final decision and the applicant’s conviction became final. The execution of the applicant’s sentence was postponed for six months for maternity as the applicant gave birth. Subsequently, she had served part of her sentence together with her baby until her request for postponement of the execution of her sentence was once again granted.
On 27 October 2017, the applicant submitted an individual application to the Constitutional Court complaining that her conviction had constituted a violation of her right to freedom of expression, the prohibition of punishment without law and the right to a fair trial, as guaranteed under Articles 10, 7 and 6 of the European Convention of Human Rights (ECHR).
Whilst the application was pending before the Constitutional Court, the applicant’s lawyers commissioned an expert opinion to be submitted in the proceedings. In September 2018, the expert opinion prepared by Professors Helen Duffy and Philip Leach of the TLSP, on guiding principles to be taken into account for the prosecution of propagandising of terrorism in the light of Turkey’s international human rights obligations and general rules of criminal law, was submitted to the Constitutional Court. The text of the expert opinion can be found here in English and Turkish.
Acknowledging that propaganda of terrorism restricts freedom of expression, the Constitutional Court held that to determine lawfulness special attention must be paid to whether or not a given statement incited to violence and posed a risk of danger for provocation of terrorism. The Constitutional Court observed that Article 7(2) of the Anti-Terror Law did not criminalise any expression associated with terrorism but only those justifying, praising or inciting to resort to methods constituting coercion or violence used by a terrorist organisation. For propaganda of a terrorist organization to be criminalised, the Constitutional Court referred to the two conditions set out under Article 5 of the Council of Europe Convention on the Prevention of Terrorism, namely, the special intent to disseminate propaganda for terrorism and the risk that a terrorist offence would be committed.
To assess the danger and the necessity of interference, the Constitutional Court called for a complete analysis of the circumstances of each case taking into account content, context, intention, timing and impact of the statement as a whole. On this basis, the Constitutional Court disagreed with the lower courts’ analysis and found that the applicant’s statement was a call for stopping the conflict in the region, irrespective of its causes, and aimed at raising public awareness of ongoing incidents of deaths and grievances during security operations, which was an issue of public interest. In this connection, the Constitutional Court reiterated that the freedom enjoyed for expressions related to matters of public interest was a broad one, calling for compelling reasons to justify any interference, and that acts or negligence of public authorities were subjected to public scrutiny in a democratic society.
Observing that the applicant’s statement had not praised or glorified those who took an active part in conflict nor had it aimed to instill hatred, the Constitutional Court decided that the applicant’s conviction under Article 7(2) of the Anti-Terror Law did not correspond to “a pressing social need” and thus, her right to freedom of expression under Article 26 of the Turkish Constitution was violated. In the operative part of its judgment, besides awarding the applicant a sum of compensation, the Constitutional Court urged the first instance court to review its decision according to its ruling and to take measures to cease the violation of the applicant’s right. Upon this ruling, the applicant has been released from prison.
It is an important decision in which the Constitutional Court pointed out guiding principles, deriving from both international law and the case-law of the ECtHR, to be taken into account by the domestic legal authorities in the interpretation and application of Article 7(2) of the Anti-Terrorism Law. However, the Constitutional Court seems to have overlooked the applicant’s complaints about the broad and imprecise nature of the impugned criminal provision resulting in arbitrary prosecution of peaceful expressions. Thus the Constitutional Court missed the opportunity to have addressed the inherently problematic aspects of the the offence of propagandising of a terrorist organisation, as formulated under Article 7(2) of the Anti-Terrorism Law, which does not provide a clear and foreseeable legal basis for restrictions that enable individuals to anticipate the consequences of their conduct and to prevent abuse by authorities. In the end, as the violation was found on the basis of not complying with the condition of necessity in a democratic society and not on the ground for legality of inference, the decision may not have as broad an impact on the protection of freedom of expression in Turkey as it should. Moreover, despite the applicant’s lawyers’ complaint under Article 18 of the ECHR, the Constitutional Court failed to examine or even refer to the applicant’s allegation that the real aim of her conviction was to silence or punish her for having made a public comment perceived to be critical of the authorities’ conduct.
Despite these shortcomings, the decision provided for Article 10-compliant interpretation of Article 7(2), which has the potential to set course for the many similar cases, such as those concerning the Academics for Peace, pending before the domestic courts, bearing in mind that in the recent years the impugned provision has been extensively applied to restrict legitimate criticism and peaceful expressions in Turkey. It remains to be seen whether the Constitutional Court will continue adopting this approach and reinforce the protection of freedom of expression in its future rulings, given the apparent fluctuations in its judicial performance. It is also to be seen whether the prosecuting authorities and instance courts will feel bound to comply with this ruling and refrain from unjustified prosecutions of peaceful expressions, like the one raised in the present case.
On May 15th at Columbia SIPA, TLSP will co-host a panel bringing together distinguished speakers to discuss the paradigm shift fuelled by the latest local elections in Turkey. On May 6th, the Turkish Supreme Election Council’s decision on the re-run of local elections in Istanbul shook the country to its core. Panellists will discuss what the future holds for citizens politically and socially, where this shift will take the country next, and importantly what this means for the rule of law and freedom of expression. In light of Professor Fusun Ustel’s imprisonment on Tuesday May 7th 2019, panellists will expand on academic freedom.
Chad Kautzer, Chair - Professor of Philosophy, Lehigh University
Sarah Clarke, Article 19, Head of Europe and Central Asia
Ayse Bingol Demir, Lawyer, Turkey Litigation Support Project
Cem Ozatalay, University in Exile Visiting Research Scholar at The New School
Giran Ozcan, HDP US Representative
Aykan Erdemir, Former CHP MP, Senior Fellow, Foundation for Defense of Democracies
Sezgin Tanrikulu, CHP Member of Parliament (via Skye)
Research Institute on Turkey
Columbia Global Freedom of Expression
Columbia Institute for the Study of Human Rights
Turkey Litigation Support Project
420 W 118th Street, New York, NY
For more information: https://m.facebook.com/events/350034255717809/
During and after the coup attempt, the Ankara public prosecutor’s office opened a criminal investigation in which some 3,000 judges and prosecutors were taken into police custody and placed in pre-trial detention. Mr Alparslan, a former member of the Turkish Constitutional Court, was detained on 19 July 2016 in connection with this investigation and remains in custody. Mr Alparslan was suspected of seeking to overthrow the constitutional order under Article 309 of the Turkish Criminal Code, and being a member of the FETO/PDY group (a designated terrorist organization under Article 314 of the Turkish Criminal Code) claimed to be behind the 15 July 2019 coup attempt. He was dismissed from the Constitutional Court following a plenary session held by the court on 4 August 2016. Mr Alparslan applied to the European Court of Human Rights (ECtHR) challenging his pre-trial detention, and the Court delivered its judgement in this case on 16 April 2019.
Prior to applying to the ECtHR, Mr Alparslan lodged an individual application with the Constitutional Court – complaining of both arbitrary detention and a lack of specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. In addition, he maintained that the domestic courts had not given sufficient reasons for ordering his detention, that the magistrates who ordered his pre-trial detention were not independent and impartial, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. Lastly, he argued that the process of his dismissal had infringed his rights to a fair trial, to respect for his private life and home, to freedom of expression, and constituted discrimination.
With regard to the lawfulness of his detention and his dismissal, the Constitutional Court held on 11 January 2018 that he had failed to bring an appropriate compensation claim under Article 141(1) of the Turkish Code of Criminal Procedure (CCP) and had therefore not exhausted all remedies. All remaining complaints were held to be manifestly ill founded.
Before the ECtHR, the applicant complained that he had been arbitrarily placed in pre-trial detention, and argued there had been no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention. The ECtHR examined the complaints under Article 5(1) and 5(3) of the Convention – finding Turkey to be in violation of both provisions.
In its evaluation, the Court paid special attention to Mr Alparslan’s position as a member of the Constitutional Court, emphasizing the “special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties” (para. 102). The Court noted that they must be “particularly attentive to the protection of members of the judiciary when reviewing the manner in which a detention order was implemented from the standpoint of the provisions of the Convention.” The Court went on to highlight the importance of the general principle of legal certainty and the requirement that any law outlining conditions for deprivation of liberty should be clearly defined, foreseeable in its application, so that it meets the standard of lawfulness.
The ECtHR found that the Constitutional Court’s interpretation of Article 100 of the CCP, which formed the legal basis of the applicant’s pre-trial detention, to be both in breach of the principle of legal certainty and manifestly unreasonable. The Court found that the national courts’ extension of the scope of the concept of in flagrente delicto and its application in the present case did not take place in accordance with a procedure prescribed by law as required by Article 5(1) of the Convention. A leading judgement adopted in October 2017 by the Court of Cassation in Turkey had held that at the time of the arrest of judges suspected of the offence of membership of an armed organisation, there was a situation of discovery in flagrente delicto – warranting pre-trial detention.
In the Court’s view, “this amount[ed] to an extensive interpretation of the concept of discovery in flagrante delicto, expanding the scope of that concept so that judges suspected of belonging to a criminal association are deprived of the judicial protection afforded by Turkish law to members of the judiciary […] negat[ing] the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive.” Moreover, the Court held that this extensive interpretation could not be regarded as an appropriate response to a state of emergency. Such an approach (which was not adopted in response to the exigencies of the situation as required under Article 15 of the Convention) was found not only to be problematic in terms of legal certainty, but also negates procedural safeguards affording judges independence from the executive, and has “legal consequences reaching far beyond the legal framework of the state of emergency” which could in no way be justified.
Regarding the alleged lack of reasonable suspicion that the applicant committed an offence, a safeguard guaranteed by Article 5(1)(c) of the Convention, the Court noted that the items of evidence used to justify the applicants continued detention were gathered long after his pre-trial detention. Given that the case in question concerned his pre-trial detention, it was found that they need not examine the items of evidence to determine whether the suspicion grounding the order for his detention was “reasonable.” Although the subsequent gathering of evidence in relation to the charge against the applicant could have reinforced a suspicion linking him to the commission of terrorist-type offences, it could not have formed the sole basis of a suspicion justifying his initial detention. The Court went on to find that “[t]he detention order was based on a mere suspicion of membership of a criminal organisation. Such a degree of suspicion cannot be sufficient to justify an order for a person’s detention.”
As regards the notion of “reasonableness” of the suspicion on which the arrest or detention had to be based during the state of emergency, the Court observed that the difficulties facing Turkey in the aftermath of the attempted military coup were undoubtedly a contextual factor which had to be taken into account when interpreting and applying Article 5 of the Convention in the present case. This did not mean, however, that the authorities had carte blanche under Article 5 to order an individual’s detention during the state of emergency without any verifiable evidence or information, or without a sufficient factual basis satisfying the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion. After all, the “reasonableness” of the suspicion on which deprivation of liberty had to be based formed an essential part of the safeguard laid down in Article 5 § 1 (c).
The judgment is an important one, highlighting key issues concerning the importance of maintaining procedural safeguards– even in the context of a state of emergency. It is the first decision concerning the pre-trial detention of a judge following the coup attempt, and has the potential to set precedent for other cases concerning the ongoing detention of a number of judges and prosecutors.
On 5 March 2019, the European Court of Human Rights communicated the case of Kerestecioglu Demir v. Turkey with the Turkish Government. The applicant, Ms Kerestecioglu, challenges the waiver of her parliamentary immunity through a constitutional amendment procedure allowing a prosecutor to pursue a criminal investigation against her on account of her participation in a peaceful public assembly as a Parliamentarian. The applicant alleges that she is being prosecuted due to her political views as an opposition politician, amounting to a violation of her right to freedom of opinion and expression protected under Article 10 of the Convention.
On 1 November 2015 the applicant was elected as a deputy and since then she has been carrying out her role as parliamentarian in the National Assembly. A prosecutor filed an investigation report against the applicant for her attendance at a public assembly, which was transmitted to the Parliament for the waiver of her immunity.
On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for waivers of immunity had been transmitted to the National Assembly before the date of its adoption.
The Court posed the following questions to the parties:
Has the applicant exhausted domestic remedies? Particularly, considering the relevant judgments of the Turkish Constitutional Court (TCC) whether the applicant was obliged to bring an individual application before the TCC?
Does the lifting of immunities following the constitutional amendment amount to an interference in the applicant’s right to freedom of expression, as a member of the opposition, within the meaning of Article 10 of the Convention?
If so, is the alleged interference prescribed by law and necessary in a democratic society? In particular, could it be considered that the lifting of parliamentary immunities is outside the standard procedure prescribed by Articles 83 and 85 of the Constitution, corresponds to a "pressing social need" and is "proportionate to the aim legitimate aim' within the meaning of the Court's case-law?
Regarding the decision of the legislature following to the constitutional amendment procedure, did it have a deterrent effect on the exercise by the applicant of her right to freedom of expression?
What would be the concrete consequences of the lifting of the applicant's parliamentary immunity? Parties are invited to submit relevant documents relating to the criminal investigation against the applicant.
This case is important as it is one of the first to evaluate the stripping of parliamentary immunity of an MP and potential repercussions of a criminal prosecution on the freedom of expression and political activities of an opposition politician.
Diyarbakır Büyükşehir Belediyesi Meclisinin bir önceki dönem 6 üyesi, 674 sayılı OHAL Kanun Hükmünde Kararnamesi uyarınca meclis faaliyetlerinin askıya alınmasına ilişkin 4 Nisan 2019 tarihinde Birleşmiş Milletler İnsan Hakları Komitesi'ne (UNHRC) başvurdu. Türkiye Dava Destek Projesi (Turkey Litigation Support Project), başvurucuların temsilcisi avukat Cihan Aydın ile birlikte başvurunun hazırlanmasında çalıştı. Bilindiği üzere, Belediye Meclisinin işlevleri, 674 sayılı Kanun Hükmünde Kararname uyarınca hükümet tarafından atanan bir 'kayyum' tarafından üstlenilmiş, Belediye Meclisinin geçmiş dönem seçilmiş üyelerinin toplanmaları ve kamu hizmetine katılmaları fiilen engellenmiş ve bu durum olağanüstü hal kaldırıldıktan sonra da dayanaksız bir şekilde sürdürülmüştü.
Başvurucular, BM İnsan Hakları Komitesi’ne taşıdıkları şikayetlerinde, Medeni ve Siyasi Haklara İlişkin Uluslararası Sözleşmeye (MSHUS) taraf olan Türkiye’nin, 4. madde uyarınca Sözleşme ile garanti altına alınan hakları askıya almak için gerekli şartları yerine getirmediğini ve Diyarbakır Büyükşehir Belediye Meclisinin faaliyetlerinin askıya alınmasının MSHUS'nin 25, 26 ve 2 (3) maddelerinde öngörülen haklarını ihlal ettiğini belirtmişlerdir. Bu kapsamda, askıya alma bildiriminin yeterince kesin olmadığını, şikayetin sunulduğu sırada tedbirlerin halen devam ettiğini ve bu tedbirlerin gerekli ve terörizme karşı mücadele adı altında belirtilen müdahale amaçları ile orantılı olmadığını ileri sürmüşlerdir.
Ayrıca başvuruda, 674 sayılı Kanun Hükmünde Kararname ile getirilen kısıtlamaların yasal ve makul olmadığı belirtilmiştir. Kararnamenin açıklık ve öngörülebilirlikten yoksun ve ulusal güvenlik tehdidini ortadan kaldırma amacına ulaşmak için ne gerekli ne de orantılı olduğu tartışılmıştır. Başvuruculara göre, bütün bunlara ek olarak, kararname, yeterli yasal güvenceleri içermemiş ve keyfi bir şekilde uygulanmıştır. Dolayısıyla, başvurucuların ve seçmenlerin, belediye meclisinin askıya alınmasından sonra temsilcilerinin seçilmesi yoluyla kamu hizmetlerine katılımları engellendiği için MSHUS'nin 25 (a) ve (b) maddeleri ile garanti altına alınan hakları ihlal edilmiştir.
Başvuranlar ayrıca, Kanun Hükmünde Kararnamenin, ağırlıklı olarak Kürt politikacılarını ve belirli bir siyasi görüşe sahip olanları hedef alan bir şekilde uygulandığını dolayısıyla MSHUS’nin 26. maddesi uyarınca ayrımcılığa uğramama haklarının ihlal edildiği konusunda şikayette bulunmuşlardır.
Son olarak, başvurular, Türkiye'de yargının bağımsızlığı, tarafsızlığı ve yeterliliği ile ilgili endişelerini öne sürmüş, yürütmenin bu organlar üzerindeki etkisinin yanı sıra, olağanüstü halden kaynaklanan eylemlerden dolayı kanun yollarına ulaşımın eksikliği ve karışıklığının, etkisiz bir hukuk yolunun zemininin oluşmasına katkıda bulunduğunu ileri sürmüşlerdir.
Anayasa Mahkemesinin bu konulara dair başvurularda konu bakımından yetkisizlik nedeniyle verdiği ret kararları başvuranların maruz kaldıkları hak ihlalleri için etkili bir iç hukuk yolunun bulunma ihtimalini ortadan kaldırmıştır. Bu konuda başvurucuların tüketebileceği mevcut başka bir kanuni merci ve etkili bir hukuk yolunun bulunmaması nedeniyle bu durum, 25 ve 26. maddeleri ile birlikte okunduğunda MSHUS’nin 2 (3) maddesinin ihlali sonucunu doğurmuştur.
Bu başvuruya ilişkin daha fazla bilgi için bize email@example.com adresinden ulaşabilirsiniz.
On 4 April 2019, a complaint concerning the suspension of the Council of the Greater Municipality of Diyarbakır in south-eastern Turkey was lodged with the United Nations Human Rights Committee (UNHRC).Read More
On 8 January 2019, the European Court of Human Rights communicated the case of Hüseyin Uzun v Turkey with the Turkish Government. The applicant, Mr Uzun, challenges Emergency Legislative Decree No. 677 on the grounds that it violated his right to education protected by Article 2 of Protocol 1 of the Convention.
On 2 August 2016, the applicant Mr Uzun, was placed in pre-trial detention in Burdur Prison on suspicion of being a member of the FETÖ / PDY organisation. At the time, Mr Uzun was enrolled in a training program at the Anadolu University of the Faculty of Public Administration. On 23 November 2016, the prison administration sent Mr Uzun a copy of decree law no. 677 notifying him that he could not, under Article 4 of the Decree, participate in exams for the duration of the state emergency, and the entire duration of his detention.
On 22 December 2016 the applicant lodged an individual petition before the Constitutional Court, alleging that the ban introduced by the emergency decree law violated his right to education. Mr Uzun’s appeal was dismissed as manifestly ill-founded by the Constitutional Court on 18 June 2018. The Court held that the refusal to allow the applicant to sit his exam was based on an emergency law pursuing a legitimate aim, namely to ensure the discipline and security within the prison establishment. The Court indicated that as a result of the attempted coup, many persons accused of terrorist offences had been detained and/or convicted on similar charges, and therefore the number of officers responsible for the safety and protection of detainees had decreased significantly. In light of these elements and the Court’s previous decision in Mehmet Ali Eneze, it could not be said that the restriction on the applicants right to education was not necessary to achieve a legitimate aim.
The Court posed the following questions to the parties:
Did the inability of the applicant to sit his university exams as a result of the ban introduced by Legislative Decree no. 677 infringe his right to education as guaranteed by Article 2 of Protocol o 1 to the Convention?
The government was invited to provide information on the number of prisoners affected by the ban introduced by Legislative Decree no. 677, as well as information on the different types of exams available to detainees and their organisation.
This case is important as it is one of the first to evaluate interference with the right to education during a state of emergency.
On 5 March 2019, the Turkey Litigation Support Project, Amnesty International, ARTICLE 19 and PEN International submitted a third party intervention before the European Court of Human Rights (ECtHR) on the key case concerning the cancellation of passports of three academics from Turkey – Alphan Telek, Edgar Şar and Zeynep Kıvılcım. In retaliation for signing a petition calling for peace in Southeast Turkey known as the “Academics for Peace” petition, the three scholars were dismissed from their jobs, had their passports cancelled and banned from public service under Turkey’s state of emergency legislation.
The intervention highlights the importance [and cross-cutting nature] of academic freedom, and the risks that restrictions such as the one in this case pose to academics’ right to private life and the right to freedom of expression. It also stresses the right to an effective remedy as a non-derogable right, even under a state of emergency.
Helen Duffy, the co-supervisor of the newly formed Turkey Litigation Support Project, which coordinated the intervention, said “our joint intervention reminds the Court of the vital importance of academic freedom, democratic debate and access to effective remedies - all of which are under serious attack in Turkey today.”
Sarah Clarke, ARTICLE 19’s Head of Europe and Central Asia, said, “restrictions to academic freedom, as a result of the exercise of free opinion through the signature of a petition calling for peace are inacceptable. ARTICLE 19 has previously expressed concern over the violation of the right to freedom of expression in the “Academics for Peace” case and submitted an expert opinion on this case at national level. We now encourage the ECtHR to closely scrutinize any interference against the legitimate exercise of human rights in this case, and clearly question the effectiveness of domestic remedies in Turkey”.
Carles Torner, Executive Director of PEN International, added, “these three individual cases illustrate the growing intolerance for critical voices in Turkey. Over 6000 academics have been dismissed under emergency decrees since July 2016, with devastating effects. The Academics for Peace case is a warning to all academics and intellectuals who would dare express dissenting views. With the effectiveness of domestic remedies for human rights violations being questioned by many, the ECtHR has a crucial role to play – in this particular case and beyond.”
The UN Committee on Economic, Social and Cultural Rights highlights that despite the absence of a specific definition of academic freedom, this involves an institutional, individual and a public dimension. It is precisely in its latter dimension that academic freedom links with the building of a diverse and vibrant society. Any restriction on academic freedom may interfere with various other rights, including freedom of thought, expression, association, the right to education, liberty and security, freedom of movement and the right to a private life.
According to UNESCO, restrictions on academics’ freedom of movement between states impedes the “interplay of ideas and information among higher education personnel throughout the world”, which the organisations submitting this intervention fear it represents an attack to academic freedom. Under international law, States should not only refrain from restricting such freedom, but also create and maintain a “conducive environment” for it to flourish, without imposing any restraints. Even in situations of emergency, restrictions on academic freedom must be in accordance with the law, must be necessary and accompanied by basic safeguards. In addition, restrictions imposed during an imposed state of emergency should be “exceptional and temporary” and should cease when the public emergency is over.
The third party intervention also questions the existence of an enabling environment for the fulfilment of the right to effective remedy in Turkey. The UN Human Rights Committee underlines that “even if a State party, during a state of emergency, … may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation … to provide a remedy that is effective”.
Lucy Claridge, Director of Strategic Litigation at Amnesty International, stated “The right to an effective remedy is one of the basic rule of law guarantees that cannot be dispensed with even in an emergency. Our intervention urges the ECtHR to confirm that this right remains fully applicable at all times.”
Turkey Litigation Support Project
TLSP and PEN International submitted written comments on 16 January 2019 as third party interveners in the case of Mehmet Osman Kavala v. Turkey (Application no. 28749/18) concerning pre-trial detention of a prominent civil society leader, publisher and human rights defender (HRD). The submission provides the Court with an outline of the factual context in respect of the situation of HRDs in Turkey. It addresses international standards governing the nature of states obligations towards HRDs and reflects on principles of human rights and criminal law that constrain a rule of law approach to resort to criminal law.
Hearing on Tunc and Yerbasan v. Turkey (Applications nos 4133/16 and 31542/16) was held on 13 November 2018 before the ECtHR. Prof Helen Duffy was present at the hearing as advisors to the lawyers of the Applicants. The webcast of the hearing can be watched here.
ECtHR communicated the case of Telek and two other applications v. Turkey on 26 September 2018. The case concerns the inability to travel abroad by the applicants, who were the signatories of the Academics for Peace petition, due the cancellation or non-renewal of their passports for an indefinite period of time under the state of emergency ruling. The communication of the Court can be found here.