Court Ignores European Court of Human Rights Rulings on Abusive Proceedings A Turkish court’s conviction on May 16, 2024, of 24 Kurdish politicians on bogus charges of crimes against the state follows a manifestly political and unjust trial, Human Rights Watch and the Turkey Human Rights Litigation Support Project said today. The court sentenced the 24 to prison terms ranging from 9 to 42 years, while acquitting 12 other politicians who had been on trial with them. The politicians were from the parliamentary opposition party Peoples’ Democratic Party (HDP), including former party co-chairs Selahattin Demirtaş and Figen Yüksekdağ. The ruling confirms that the Turkish authorities instrumentalized the criminal justice system to secure the politicians’ prolonged arbitrary detention on baseless charges and remove them from political life as elected representatives. “The conviction of Selahattin Demirtaş, Figen Yüksekdağ, and other leading Kurdish opposition politicians in a mass trial is the latest move in a campaign of persecution that has robbed mainly Kurdish voters of their chosen representatives, undermined the democratic process, and criminalized lawful political speech,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “Using bogus criminal proceedings to remove democratically elected Kurdish politicians from political life will do nothing to end the Turkish state’s decades-long conflict with the Kurdistan Workers’ Party (PKK).” In the Ankara 22nd Assize Court hearing, the court sentenced Selahattin Demirtaş to 42 years in prison, Figen Yüksekdağ to 30 years, and Gültan Kışanak, the former mayor of Diyarbakır, to 12 years, while releasing Kışanak and four others pending appeal. Ahmet Türk, the serving mayor of Mardin, was sentenced to 10 years in prison. The court ordered the continued detention of 13 defendants, including Demirtaş and Yüksekdağ. The former HDP members of parliament, elected mayors, and party officials have stood trial for the past three years on multiple charges, ranging from attempting to “destroy the unity and integrity of the state” and “membership of a terrorist organization” to “murder.” The evidence against them, as confirmed by the European Court of Human Rights, consists almost exclusively of their party’s social media posts and political speeches. The core accusation in the 3,530-page indictment naming 108 defendants—of whom 36 stood trial—centers on four social media postings on October 6, 2014, from the Twitter account of the HDP alongside the politicians’ political speeches. The prosecution added to the case file, several years after the events in question, a few statements, including from anonymous witnesses, making unsubstantiated and generalized assertions against the politicians. The addition of these dubious statements to the case file followed an arbitrary procedure that failed to respect the defendants’ basic fair trial guarantees. The party’s 2014 tweets called on supporters to protest the ongoing siege of the Kurdish-majority Syrian town of Kobane by the extremist group Islamic State (ISIS). The indictment takes these tweets as grounds to hold the accused politicians directly responsible for the ensuing protests in 32 cities across Türkiye from October 6 to 8, 2014, in which violent clashes resulted in at least 37 deaths, the circumstances of which have never been fully elucidated. The trial of the politicians has been dubbed the “Kobane trial” in the media because of the reference to the Kobane protests. The indictment charged the politicians with up to 30 offenses, including the main crime of attempting to “destroy the unity and integrity of the state,” as well as “murder,” “damage to property,” and “theft” in relation to the deaths and violence during the protests for which it held them liable. Ongoing criminal case files against the politicians in different courts charging them with crimes such as “membership of a terrorist organization” and “spreading terrorist propaganda” were then merged with the “Kobane trial” casefile. The Ankara court’s verdict, which the convicted politicians said they would appeal, is the latest development in a long campaign of persecution against the pro-Kurdish rights HDP. The persecution has been led by President Recep Tayyip Erdoğan’s ruling Justice and Development Party (AKP) government in coalition with the far-right Nationalist Action Party (MHP), Human Rights Watch and the Turkey Human Rights Litigation Support Project said. The crackdown on the politicians followed the breakdown in 2015 of intensive efforts by the party and the government to bring an end to the decades-long conflict between the armed PKK and the Turkish state. In May 2016, in a rapid sequence of events, the government led a controversial move to lift the parliamentarians’ parliamentary immunity through a temporary constitutional amendment. On November 4, 2016, leading HDP members of parliament, and on separate dates elected mayors from a sister party, were arrested and jailed on terrorism charges . Demirtaş and Yüksekdağ, the HDP’s former co-chairs, have remained in prison ever since. The party itself is fighting a case seeking its closure before Türkiye’s Constitutional Court. The Ankara court’s verdict also flagrantly flouts two binding judgments of the European Court of Human Rights (ECtHR). The ECtHR determined, in a judgment pertaining to Demirtaş in December 2020 and one pertaining to Yüksekdağ and 12 others in October 2022, that their detention on the basis of speeches and social media postings constituted a politically motivated move to silence them, “stifling pluralism and limiting freedom of political debate, the very core of the concept of a democratic society.” The ECtHR found that their rights to liberty, to freedom of expression, and to run for election had been violated and that the politicians must be released immediately. The alleged facts forming the basis on which Demirtaş and Yüksekdağ are detained, and which form the basis of their conviction, are substantially the same as those contained in the proceedings which the ECtHR found to be insufficient grounds for their detention. “The sentencing of Demirtaş, Yüksekdağ, and several other prominent opposition politicians in Türkiye to lengthy prison terms for their just political advocacy for Kurdish rights is yet another blow to hopes for positive change in the state of human rights, rule of law, and democracy in the country,” said Ayşe Bingöl Demir, director of the Turkey Human Rights Litigation Support Project. “This latest conviction, alongside ongoing arbitrary and politically charged detentions, blatantly violates international human rights standards and disregards ECtHR judgments. The international community now faces a critical choice: remain silent and risk complicity in these repressive practices, or call them out and take robust action, including initiating proceedings designated for such serious breaches of international obligations.” For more information, please contact (English, Turkish): info@turkeylitigationsupport.com, Twitter: @TR_Litigation

Former Deputies and Mayors Face Prosecution and Prolonged Incarceration for Political Speech (Istanbul, November 3, 2023) – The Turkish government should abide by international law and implement the binding judgments of the European Court of Human Rights (ECtHR) by immediately releasing politicians Selahattin Demirtaş and Figen Yüksekdağ, who formerly co-chaired the opposition Peoples’ Democratic Party (HDP), four rights organizations said today. The four nongovernmental organizations—Human Rights Watch, the Turkey Human Rights Litigation Support Project, the International Commission of Jurists, and the International Federation for Human Rights—made their call on the seventh anniversary of the politicians’ wrongful imprisonment. “The seventh anniversary of the unlawful incarceration of Selahattin Demirtaş and Figen Yüksekdağ is a stark reminder of the Erdoğan presidency’s willingness to use detention for political ends to silence democratically elected opposition politicians representing millions of Kurdish and leftist voters in Turkey,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “In defying the binding ECtHR judgments ordering the politicians’ release, Turkey is flagrantly violating its legal obligations under the European Convention on Human Rights and international law more broadly.” On November 4, 2016, months after being stripped of their parliamentary immunity, Demirtaş, Yüksekdağ and eight fellow members of parliament from the HDP were arbitrarily detained and placed in pretrial detention, with four others incarcerated over the following five months. At the time, the HDP held 10.7 percent of seats in Turkey’s parliament and was backed by over five million voters. While the 12 other deputies whose cases are covered in the ECtHR judgments are no longer in detention, Demirtaş and Yüksekdağ remain incarcerated. All the former parliamentarians have been repeatedly prosecuted in individual proceedings based exclusively on their exercise of their right to freedom of expression, protected under international law. This included their political speeches and activities, which did not involve or advocate violence. When a mass trial was opened against them in 2021, many of those ongoing individual case files were merged. The vague and wide-reaching accusations against them in this trial include allegations of “undermining the unity and territorial integrity of the State” (separatism) and even “murder.” These accusations relate to their support for protests that mainly took place in cities in southeast Turkey between October 6 and 8, 2014. The politicians have been held responsible for all offences allegedly committed over the course of these protests, which were organized against the brutal siege of the Kurdish-majority northern Syrian town of Kobane by the extremist armed group Islamic State (also known as ISIS). During the protests, 37 people reportedly died. The evidence against the politicians, on the basis of which Demirtaş and Yüksekdağ are currently detained, consists of two social media postings supporting protests over the Kobane siege sent from the HDP Twitter account, together with the politicians’ nonviolent political speeches, lawful activities, and witness statements against them added to the case file years later that raise serious questions of credibility. The ECtHR determined in three judgments—two pertaining to Demirtaş in November 2018 and December 2020, and one to Yüksekdağ and 12 others in October 2022—that their detention on the basis of speeches and social media postings was a politically motivated move to silence them, “stifling pluralism and limiting freedom of political debate, the very core of the concept of a democratic society.” The court found that their rights to liberty, to freedom of expression, and to be elected had been violated. The facts forming the basis on which Demirtaş and Yüksekdağ are detained and were prosecuted for in the 2021 mass trial are substantially the same as those contained in the proceedings which the ECtHR found to be insufficient grounds for their detention. “Despite the European Court ruling that the grounds to justify Yüksekdağ and Demirtaş’s detention were insufficient, the Ankara public prosecutor in April 2023 requested their conviction on numerous alleged offences concerning their political speech, which may result in their life imprisonment without parole,” said Temur Shakirov, interim director of the International Commission of Jurists’ Europe and Central Asia Programme. “This underscores the ultimate political motives behind the ongoing case targeting the two and reinforces doubts about the fair administration of justice in the country.” After Demirtaş and Yüksekdağ’s detentions in November 2016, Turkey held a landmark referendum and several crucial election campaigns. The April 16, 2017 constitutional referendum introduced a system of governance concentrating power in the hands of the president. It was followed by the June 24, 2018 presidential election in which Demirtaş ran as a candidate from his prison cell against President Recep Tayyip Erdoğan, the March 31, 2019 local elections, and, most recently, the May 14-28, 2023 parliamentary and presidential elections. “With two prominent figures of the opposition in detention, the country has been deprived of a significant measure of meaningful democratic debate and fair elections around these crucial campaigns,” said Reyhan Yalçındağ, vice president of the International Federation for Human Rights. “With the March 2024 local elections fast approaching, the Committee of Ministers and the other Council of Europe bodies need to use all available means to ensure the end of the continuing violations of Demirtaş’s and Yüksekdağ’s rights, including their rights to participation in public affairs, which is also a violation of the rights of millions of voters.” The Council of Europe’s Committee of Ministers, responsible for overseeing member states’ implementation of ECtHR judgements, has issued six decisions and two resolutions calling on Turkey to release Demirtaş from detention. At its December 5-7 session this year, the Committee of Ministers will for the third time examine Turkey’s failure to implement the judgment pertaining to Yüksekdağ and release her from detention. The four nongovernmental organizations have made a joint submission to the Committee of Ministers asking it to issue a decision in December calling for the release of Yüksekdağ. “Turkey has ignored the Committee’s numerous decisions and interim resolutions calling for Demirtaş’s immediate release. This refusal to comply with Turkey’s international obligations has been repeated in the case of Yüksekdağ,” said Ayşe Bingöl Demir, director of the Turkey Human Rights Litigation Support Project. “The Committee must intensify its scrutiny against Turkey in relation to these cases without further delay, and this must include the triggering of infringement proceedings, in line with the route rightly followed in the case of the imprisoned rights defender Osman Kavala.” Eighteen other elected former party officials and mayors from the HDP and an affiliated party, the Democratic Regions Party, are also currently detained. Among them is the prominent former elected mayor of Diyarbakır, Gültan Kışanak, detained since October 25, 2016, and Sebahat Tuncel, former co-chair of the Democratic Regions Party, detained on November 6, 2016. Kışanak’s pretrial detention has exceeded the legal limit of seven years under Turkish law, notwithstanding that seven years’ pretrial detention is a flagrant violation of international human rights law. The detentions of the politicians are blatantly arbitrary and politically motivated, and those imprisoned should be immediately released, the organizations said.

onviction of Osman Kavala and Four Others Needs Urgent International Response (Istanbul, October 10, 2023) – The prosecution of the rights defender and businessman Osman Kavala and four codefendants in connection with mass protests a decade ago has been unfair and essentially a political show trial from the beginning, a group of nine non-governmental organizations including the Turkey Human Rights Litigation Support Project said today, ahead of an October 12 urgent debate calling for Kavala’s release at the Parliamentary Assembly of the Council of Europe. The five have been punished for the legitimate exercise of their rights to freedom of expression, association and peaceful assembly. On September 28, 2023, Turkey’s Court of Cassation, its top appeals court, upheld the convictions, notwithstanding that the European Court of Human Rights has previously found no basis for detention or trial, and ordered Kavala’s immediate release. “By ignoring these judgments and Turkey’s human rights obligations, the Court of Cassation is doubling down on the deep injustice of this case that dramatically demonstrates how far Turkey has deviated from the rule of law,” said Helen Duffy of the Turkey Human Rights Litigation Support Project. “The trial has not only led to grave violations of the rights of Kavala and the others, but it provided a chilling example of how Turkey’s justice system has become a tool of political repression.” Although President Recep Tayyip Erdogan and Turkish government officials repeatedly state that Turkish courts are independent, the trial of Kavala and his codefendants exposes those claims for the falsehood they are, and demonstrates how in key cases of interest to the president, prosecutors and courts blatantly do his bidding. Kavala was sentenced to life in prison without parole, convicted of attempting to overthrow the government on false allegations that he organized and financed the 2013 Istanbul Gezi Park protests against a government urban development project. Four codefendants – Çiğdem Mater, Can Atalay, Mine Özerden and Tayfun Kahraman – received 18-year sentences for allegedly aiding Kavala, while the court quashed the 18-year sentences of Mücella Yapıcı, Hakan Altınay and Yiğit Ekmekçi, and ordered Yapıcı and Altınay’s release pending retrial. “This trial cynically opened six years after the Gezi Park protests with the malevolent intent of casting them as the outcome of a grand conspiracy by one man, Osman Kavala,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “To achieve this the prosecution and the courts blatantly had to ignore all the evidence of spontaneous mass protests in which the vast majority of protesters committed no violence and exercised their lawful rights to freedom of expression and assembly.” The Court of Cassation’s 78-page verdict simply reiterates the prosecution’s allegations in the February 2019 indictment, though the European Court of Human Rights ruled twice that the indictment offered insufficient evidence to justify Kavala’s detention, prosecution or conviction, and by inference, the other defendants’. Notably, in a striking rebuke to the European Court of Human Rights, Council of Europe, and Turkey’s human rights obligations, the Court of Cassation makes no reference to the repeated findings against Turkey in this case. In December 2019, the European Court ordered Kavala’s immediate release, and in February 2022, the Committee of Ministers of the Council of Europe, the body responsible for overseeing implementation of European Court judgments, took the almost unprecedented step of triggering infringement proceedings against Turkey for its refusal to comply. This led to a second European Court of Human Rights judgment condemning Turkey’s failure to carry out the first, and the failure of the Turkish court convicting Kavala and others on April 25, 2022, to recognize the European Court of Human Rights’ judgment. The Court of Cassation decision doubled down on that rejection of the European Court’s role, with no mention of that judgment. Turkey’s European and international allies, both unilaterally and through intergovernmental organizations, including the Council of Europe, the European Union, and the United Nations, should address this injustice as a matter of urgency. They should treat the case as a priority human rights matter in their mutual relations with Turkey, and push for the swift and full implementation of the European Court’s’ judgments, including for the defendants’ immediate release. They should firmly condemn the abuse of criminal law against activists, human rights defenders, journalists and others in politically motivated cases. Robust efforts are essential to ensure that Turkey respects and abides by its human rights obligations and rule of law principles, which are currently being flouted with impunity. In turning a blind eye to the Strasbourg court’s rulings, the Court of Cassation is also ignoring its constitutional obligation to ensure that Turkey adheres to binding decisions of the European Court, which take precedence over rulings in Turkey’s domestic courts. “If the rule of law were at work here, the Court of Cassation would respect the European Court of Human Rights judgment ordering Kavala’s immediate release,” said Temur Shakirov, Europe and Central Asia Director (interim) at the International Commission of Jurists. “Instead, and flying in the face of the evidence, the court has decided it is better to follow President Erdogan’s view, repeated in speech after speech, that Kavala is guilty.” The Court of Cassation’s Flawed Reasoning In its September 29 decision, the Court of Cassation relies on a chronology of events from the February 2019 indictment that the prosecution argues constituted the preparation for the Gezi protests. This included making a short video with a group of actors in 2011 called “Rise up Istanbul,” production of a play in Istanbul about a dictator, which ran from 2012-13, and the 2012 establishment of the civil society platform, Taksim Solidarity, focused on the highly contested plan to develop Taksim Square and Gezi Park. The court fails to show any causality between these lawful activities and any crime or to provide any evidence that these activities showed that Kavala and the other defendants were involved in a conspiracy. The court decision makes reference to the protests and popular uprisings in various Middle Eastern countries that predated the Gezi protests and came to be known as the Arab Spring, and nonviolent civil disobedience movements such as OTPOR in Serbia a decade earlier, without showing their relevance to the case. The decision names civil society organizations and alleges they “supported and directed” the Gezi Park protests without providing any credible evidence. Chief among them are the Open Society Foundations, set up by the US financer and philanthropist George Soros, and the affiliated but independent (and now dissolved) philanthropic foundation in Turkey (Açık Toplum Vakfı). Kavala was a founding member of the group, and Altınay served for a period well before the Gezi Park protests as director of the board. The court repeats a conspiracy theory, informed by antisemitic tropes, from the original indictment that Soros’s organizations aimed to overthrow governments in various countries by encouraging uprisings, and that the Turkish Open Society Foundation and Kavala were involved in this process under the guise of innocent-looking philanthropic activities. Kavala’s own civil society group, Anadolu Kültür A.Ş., which supports the arts, was also named. The other defendants were linked to Kavala through their participation in that organization: film producer Çiğdem Mater, employed as an advisor, Mine Özerden, a member of the board, and Yiğit Ekmekçi, deputy head of the board. Taksim Solidarity is named as the group in which three defendants - lawyer Can Atalay, city planner Tayfun Kahraman and architect Mücella Yapıcı - participated actively. The Court of Cassation endorses the indictment’s inclusion of Kavala’s contacts with bodies such as the European Commission, members of the European Parliament, diplomats, diplomatic missions and international human rights groups, as evidence of alleged efforts to influence international opinion against the Turkish government. A section on the alleged protest financing cites the Open Society Foundations’ funding of the Turkish Open Society and Anadolu Kültür, but it omits that a formal investigation into the funding cited in the indictment (the MASAK report) found no evidence of unaccounted for money transfers. Instead, the court relies on examples drawn from wiretapped conversations, of Kavala once bringing people camped in the park a few bread rolls, talking about obtaining a plastic table for use in the park, and where to buy masks and goggles to protect from police tear gas. The court decision also allows as admissible evidence a mass of random wiretapped conversations between the defendants and others that were illegally obtained. Far from revealing any criminal activity, the conversations show that the defendants were lawfully engaged in civil society organizations and nonviolent activism, and were exercising their rights to free speech, association, and assembly. Such activities are strictly protected under international law, including treaties to which Turkey is a party such as the European Convention of Human Rights and the International Covenant on Civil and Political Rights, as well as in Turkey’s own laws. The decision rejects parliamentary immunity from prosecution for one of the defendants, Atalay, a lawyer and activist who won a seat in the May 2023 parliamentary elections on behalf of the Workers’ Party of Turkey. The Court of Cassation decided that he was not protected by parliamentary immunity under article 83 of Turkey’s Constitution in relation to this case confirming its own July 13 decision on the matter, and upheld his conviction. In reaching this conclusion, the Court of Cassation rejects the case law of the Constitutional Court, given under identical conditions, in judgments related to other jailed parliament members, Ömer Faruk Gergerlioğlu and Leyla Güven, which held that they do have immunity and that arresting, prosecuting, and detaining them constitute very serious violations of that immunity. The nongovernmental organizations who signed the statement are: · Amnesty International · ARTICLE 19 · Human Rights Watch · European Democratic Lawyers (AED) · European Lawyers for Democracy and Human Rights (ELDH) · International Commission of Jurists · International Federation for Human Rights (FIDH) · PEN International · Turkey Human Rights Litigation Support Project. For more information, please contact (English, Turkish): info@turkeylitigationsupport.com

Council of Europe Committee of Ministers should adopt a strong and resolute approach in its supervision of the execution of the European Court of Human Rights’ judgments in the Oya Ataman group cases, especially in the wake of the upcoming Presidential elections of May 2023. 26 international and Türkiye-based non-governmental organizations, including the Turkey Human Rights Litigation Support Project, and 7 local bar associations presented a Rule 9.2 communication regarding the execution of the European Court of Human Rights’ Oya Ataman Group judgments. The cases concern the exercise of the right to freedom of peaceful assembly in Türkiye and are under the judgment execution supervision of the Council of Europe Committee of Ministers. The Committee will evaluate the joint submission of the non-governmental organisations and bar associations together with the recent action plan by Türkiye in its meeting on 7-9 March 2023. The submission draws attention to the importance of the Committee's role in monitoring the implementation of the relevant judgments and formulates the general measures that Türkiye must take to comply with the Court's case-law and international human rights standards. Oya Ataman group consists of 74 cases addressing important legal, social and political issues in Türkiye related to the right to peaceful assembly and association guaranteed under Article 11 of the European Convention on Human Rights, as well as the right to life (article 2), the prohibition of torture (article 3), the right to liberty and security (article 5), the right to freedom of expression (article 10) and the right to an effective remedy (article 13). Although the Committee of Ministers closed 64 of these cases "without prejudice to the continuing need for general measures", the joint submission underlines that there are growing and serious shortcomings in domestic legislation and in the judicial and administrative practice of the Turkish authorities. The communication sets out a number of general measures necessary for the full implementation of the case-law of the ECtHR on the right to freedom of peaceful assembly in Türkiye and requests the Committee to ensure their adoption. The non-governmental organisations and bar associations underline that, in the light of the reports of non-governmental organizations and official statistics, the exercise of the right to freedom of peaceful assembly has seriously deteriorated in Türkiye, especially in the period following the 2016 coup attempt. Accordingly, the practices of the Turkish authorities such as systematically declaring meetings, demonstrations, and marches “illegal” by imposing general or specific prohibitions; the inappropriate and disproportionate use of force in police interventions and detentions in peaceful gatherings as well as impunity for police officers who bear responsibility; and the exposing of demonstrators and participants to administrative fines and judicial sanctions increased even after the lifting of the state of emergency in 2018. According to non-governmental organizations and bar associations, especially women's rights groups, those based in the regions with a high Kurdish population, LGBTI+ groups, and workers are among those most exposed to these serious and systematic rights violations. The submission contests the government’s claims in its action plan of 8 July 2022 and argues that the current legal framework and practice in Türkiye largely do not meet the Convention standards. According to the non-governmental organisations and bar associations, the Turkish government does not effectively address the ECtHR's findings in the Oya Ataman group judgments and the requests of the Committee of Ministers as part of its judgment execution supervision process, and it generally does not take necessary measures to strengthen the right to freedom of peaceful assembly. They further reiterate that the systematic prevention of the exercise of this fundamental right in Türkiye is seriously deteriorating. Considering the essential role freedom of peaceful assembly plays in the protection of democracy and pluralism, the Committee of Ministers should urgently adopt a strong and resolute approach in its supervision of the execution of the Court’s judgments in the Oya Ataman group, especially in the wake of the upcoming Presidential elections in mid-2023. After providing a comprehensive picture -supported by evidence and examples- that the exercise of the right to freedom of peaceful assembly is essentially impossible in Türkiye due to the systematic interventions in the right by the Turkish authorities, the non-governmental organizations and bar associations invite the Committee of Ministers to ensure following its 7-9 March 2023 meeting that the Oya Ataman group cases remain under the enhanced procedure and are reviewed regularly in the Committee’s quarterly Human Rights meetings and call on Türkiye to take the following general measures: 1. Review its the Action Plan and fully address the structural problems identified by the ECtHR in the Oya Ataman group and stemming from domestic legislation; 2. Amend Law No. 2911 to ensure that its provisions are fully in line with the principles set out in the case law of the ECtHR; 3. Amend Law No. 5442 to ensure that its provisions are fully in line with the principles set out in the case law of the ECtHR; in particular, amend Article 11(C) which grants broad powers to governors to ban both peaceful public assemblies and indoor human rights events, 4. Review the 2016 Directive on the use of tear gas and other crowd control weapons to ensure that it complies in all respects with international standards in relation to the use of crowd control weapons and to make use of the international expertise which could be made available through the Council of Europe; 5. Urge Türkiye to put in place an effective ex post facto review mechanism to assess the reasonableness and proportionality of any use of excessive force by law enforcement officials; 6. Call on Türkiye to stop the criminalization of the members of civil society who exercise their right to freedom of peaceful assembly; 7. Call on Türkiye to pursue a clear and detailed strategy to prevent violations of the right to freedom of peaceful assembly; 8. Urge Türkiye to carry out an effective overview of the in-service training programmes for law enforcement officials on human rights, proportionate use of force, intervention against public events, and use of tear gas; 9. Request Türkiye to provide detailed information on administrative bans imposed on assemblies and demonstrations (including information on the locations, the authorities who ordered, dates, their scope and durations), on interventions by law enforcement officers to disperse demonstrations and meetings, and on assemblies and demonstrations that were allowed to take place without police intervention although they failed to comply with the requirements of the Law No. 2911, as well as the number of criminal and administrative prosecutions and convictions linked to breaches of Law No. 2911; 10. Request Türkiye to provide detailed information on the criminal investigations and proceedings initiated against law enforcement officers accused of using excessive force to disperse meetings and demonstrations (including information on the numbers of prosecutions, convictions, and acquittals, the type of offences and sentences). The English version of the submission is here, and the Turkish version is here. Non-governmental organizations and bar associations that made the joint submission include several members of the Human Rights Defenders Solidarity Network and are as follows: Association for Freedom of Expression (İfade Özgürlüğü Derneği), Association of Lawyers for Liberty/Istanbul Branch (Özgürlük İçin Hukukçular Derneği İstanbul Şubesi), Batman Bar Association (Batman Barosu), Bingöl Bar Association (Bingöl Barosu), Civic Space Studies Association (Sivil Alan Araştırmaları Derneği), Civil Rights Defenders, Dersim Bar Association (Dersim Barosu), European Lawyers for Democracy and Human Rights, Foundation for Society and Legal Studies (Toplum ve Hukuk Araştırmaları Vakfı), Human Rights Foundation of Turkey (Türkiye İnsan Hakları Vakfı), Initiative for Freedom of Expression (Düşünce Suçuna Karşı Girişim), International Federation For Human Rights, Lambdaistanbul LGBT Solidarity Association (Lambdaistanbul LGBTİ+ Dayanışma Derneği), Kaos GL Association (Kaos GL Derneği), Life Memory and Freedom Association (Yaşam Bellek Özgürlük Derneği), London Legal Group, Mardin Bar Association (Mardin Barosu), Muş Bar Association (Muş Barosu), Progressive Lawyers Association (Çağdaş Hukukçular Derneği), P24 Independent Journalism Association (P24 Bağımsız Gazetecilik Derneği), Research Institute on Turkey, Roman Memory Studies Association (Roman Hafıza Çalışmaları Derneği/Romani Godi), Social Policies, Gender Identity, and Sexual Orientation Studies Association (Sosyal Politika, Cinsiyet Kimliği ve Cinsel Yönelim Çalışmaları Derneği), Şırnak Bar Association (Şırnak Barosu), Truth Justice and Memory Center (Hakikat Adalet Hafıza Merkezi), the Turkey Human Rights Litigation Support Project, University Queer Research and LGBTI+ Solidarity Association (Üniversiteli Kuir Araştırmaları ve LGBTİ+ Dayanışma Derneği), Van Bar Association (Van Barosu) and Human Rights Joint Platform (İnsan Hakları Ortak Platformu): Association for Monitoring Equal Rights (Eşit Haklar İçin İzleme Derneği), Citizens Association (Yurttaşlık Derneği), Human Rights Agenda Association (İnsan Hakları Gündemi Derneği), Human Rights Association (İnsan Hakları Derneği), and Rights Initiative Association (Hak İnisiyatifi Derneği)

Trial an assault on political opposition and democratic norms before elections [London] Current efforts to dissolve the second-largest opposition party in Turkey’s parliament ahead of parliamentary and presidential elections are the latest in a deeply problematic practice in Turkey of forcing the closure of political parties, a group of 10 international and local non-governmental organizations, including Turkey Human Rights Litigation Support Project said today. Previous efforts have violated the rights to freedom of association, assembly, and expression, and to free and fair elections including the rights of voters to elect their chosen representatives. The Constitutional Court is currently being asked to order the closure of the Peoples’ Democratic Party (HDP), a political party with 56 deputies in Turkey’s parliament. An indictment against the party seeks to ban 451 politicians and party members from organized political activity or membership of political parties for a period of five years and forfeiture of the party’s assets. On January 5, the Constitutional Court agreed to a request by the chief prosecutor of the Court of Cassation for the interim measure of freezing the party’s bank accounts containing treasury support which political party groups in parliament are entitled to receive. On 10 January, the chief prosecutor is due to give an oral presentation of the case against the party to the Constitutional Court, which the HDP will respond to at a later date before the court convenes to deliberate and then issue a final ruling. The 10 organizations on 11 October 2022 submitted a third-party intervention to the Constitutional Court arguing that arbitrary closure of political parties violates multiple rights. “International law guarantees the rights of political parties within the frame of freedom of association, expression, peaceful assembly, and views the rights of every citizen to take part in the conduct of public affairs, to vote and to stand for election as core principles of democracy,” said Philip Leach of the Turkey Human Rights Litigation Support Project. “The case before Turkey’s Constitutional Court concerning the possible closure of the Peoples’ Democratic Party is a fundamental test of whether the court will abide by international law and respect democratic norms. Closing down a political party without compelling grounds violates multiple rights and is an attack on democracy.” The case before the Constitutional Court is based on a 7 June 2021 834-page indictment that mainly asserts the HDP’s activities are carried out in line with the aims of the armed outlawed Kurdistan Workers’ Party/Kurdistan Communities Union (PKK/KCK). According to the indictment, there is an “organic” link between the PKK/KCK and the HDP’s activities which the prosecutor claims support separatism by being “in conflict with… the indivisible integrity of the State with its territory and nation,” a violation of article 68/4 of Turkey’s Constitution and provisions in the Law on Political Parties. The indictment accuses the party’s members and sub-bodies and organs of having taken part in the commission of crimes of this nature or encouraged them to be committed or praised these crimes and those who committed them. The NGOs argued in their third-party intervention that the case against the HDP should be seen in the context of Turkey’s long history of party closures which contrasts starkly with the practice in other Council of Europe member states and has repeatedly been found to violate the European Convention on Human Rights. Since 1982, Turkey’s Constitutional Court has ordered the dissolution of 19 political parties out of the 40 cases it has reviewed. The majority of these have been parties representing the interests of Kurds in Turkey or leftist parties. The vague and widely drawn prohibition of acting “in conflict with … the indivisible integrity of the State with its territory and nation” has been the principal charge. Three parties have been closed down on the equally vague grounds of acting “in conflict with… the principles of the democratic and secular republic.” In 2008, President Erdogan’s Justice and Development Party itself narrowly escaped party closure on the latter grounds. The European Court of Human Rights (ECtHR) has found that party closure decisions violated the European Convention on Human Rights in six out of seven of the cases from Turkey it has examined. In its case law essentially developed out of its rulings on those cases, the ECtHR deems restrictions or closure of political parties to be exceptional and extreme measures. The court’s criteria for examining the compliance of a party closure decision with the European Convention on Human Rights is based on three tenets. The court assesses whether the closure is prescribed by law, whether it pursues a legitimate aim, and whether it is necessary in a democratic society and proportionate. The NGOs emphasized in their submission that in all the cases of parties representing the interests of Kurds submitted to the ECtHR, the court found that peacefully advocating the right to self-determination and recognition of Kurdish language rights or Kurdish identity were not themselves contrary to the fundamental principles of democracy, and that party closure violated the right to association. The ECtHR determined that in most cases the dissolution of those parties could not reasonably be said to have met “a pressing social need”. “The Constitutional Court should view the present case against the HDP in light of the repeated rulings of the European Court of Human Rights finding that closure of political parties in Turkey – in particular those representing the interests of Kurdish voters – violates fundamental rights,” said Öztürk Türkdoğan of the Human Rights Association. “The extreme measure of closing down a political party serves to stifle pluralism and limit freedom of political debate, which is at the very core of the concept of a democratic society.” The NGOs also examine the ECtHR’s recent findings in cases concerning HDP members, a pattern of abuse of criminal proceedings to silence perceived opponents and critics of the government and the evidence that the Turkish government systematically interferes with the judiciary. The NGOs submitting the third-party intervention to the Constitutional Court are: the Turkey Human Rights Litigation Support Project (TLSP), ARTICLE 19, the Association of Lawyers for Liberty (ÖHD), the European Association of Lawyers for Democracy and Human Rights (ELDH), European Democratic Lawyers (AED), the Human Rights Association (İHD), Human Rights Watch (HRW), the International Commission of Jurists (ICJ), the International Federation for Human Rights (FIDH), and Rights Initiative Association.

Council of Europe Ministers should use all the legal, political and diplomatic tools designated in the Convention system to increase the pressure on Türkiye to secure the immediate release of Mr. Demirtaş. Turkey Human Rights Litigation Support Project, ARTICLE 19, Human Rights Watch, the International Commission of Jurists, and the International Federation for Human Rights presented on 4 November 2022 a joint Rule 9.2 submission to the Council of Europe Committee of Ministers on the implementation of the European Court of Human Rights judgment in the case of Selahattin Demirtaş v. Turkey (No.2) (Application no. 14305/17). On 22 December 2020, the Grand Chamber of the Strasbourg Court found in its landmark judgment that Türkiye violated Articles 5(1) and (3) (the right to liberty and security), Article 10 (freedom of expression), Article 3 of Protocol No. 1 (the right to free elections) and Article 18 (restrictions on rights for an unauthorised purpose) in conjunction with Article 5 of the European Convention on Human Rights. In its judgment, the Grand Chamber held that Türkiye must take all the necessary measures to secure Mr. Demirtaş’s immediate release, and that “the continuation of his pre-trial detention, on grounds pertaining to the same factual context, would entail a prolongation of the violation of his rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment in accordance with Article 46 § 1 of the Convention”. Despite the passage of more than two years since the judgment, Mr. Demirtaş remains in arbitrary detention. In a series of previous Rule 9.2 submissions (dated 7 February 2021, 23 July 2021 and 24 May 2022), the NGOs set out that the ongoing pre-trial detention of Mr. Demirtaş, after the publication of the Grand Chamber judgment, is a consequence of criminal proceedings which have the same factual or legal basis as the earlier proceedings which led the European Court to find multiple violations of the Convention, and that this situation clearly constitutes a further prolongation of the violations of his rights. Thus, Mr. Demirtaş’s ongoing pre-trial detention is fully covered within the scope of the Grand Chamber judgment, in particular by its finding of a violation of Article 18 in conjunction with Article 5. Following the Committee of Ministers’ interim resolution adopted in December 2021 agreeing with this conclusion and requesting Mr. Demirtaş immediate release, the Turkish authorities has been claiming that Mr. Demirtaş is currently detained on the basis of “new evidence and allegations” that are different in substance from those examined by the Court in its judgment. In their November 2022 submission, the NGOs make a detailed analysis of the Government’s claims and roundly reject them. They reiterate that Mr. Demirtaş’s ongoing detention is fully within the scope of the Grand Chamber judgment and urge the Committee of Ministers to ensure that his detention is brought to an end. In this connection, the NGOs recommend the Committee to consider taking the following steps at its December 2022 meeting circle: • The Committee of Ministers should disregard the false and misleading claims made by the Turkish government and firmly condemn Türkiye’s ongoing attempts to avoid executing the European Court’s judgment. • The Committee should use all the legal, political and diplomatic tools designated in the Convention system to increase the pressure on Türkiye to secure the immediate release of Mr. Demirtaş, especially taking into account the deleterious impact his ongoing detention will have on the upcoming presidential and parliamentary elections in June 2023. This should include the triggering of infringement proceedings against Türkiye under Article 46(4) of the Convention in the event that Mr. Demirtaş remains in detention, as well as efforts to ensure the direct and continuing engagement, through all available channels, by member states, the Secretary General, the PACE, and all other Council of Europe institutions. • This case should remain high on the agenda of the Council of Europe institutions and member states in any relations with Türkiye and its full resolution must be identified as one of the main conditions for maintaining constructive co-operation with the country.

The Committee of Ministers must exercise robust oversight of this important case concerning incompatibility with the European Convention on Human Rights of the widespread dismissals of public sector workers under the state of emergency and adopt a holistic approach to implementation and reparation in the case. On 1 September 2022, the Turkey Human Rights Litigation Support Project, Amnesty International and the International Commission of Jurists presented a Rule 9.2 communication to the Council of Europe Committee of Ministers regarding the execution of the European Court of Human Rights’ judgment in the case of Pişkin v. Turkey (Application no. 33399/18). The Pişkin v. Turkey judgment is the first in which the Court has ruled on the incompatibility with the European Convention on Human Rights of the widespread dismissals of public sector workers under the state of emergency. The findings of the Court are relevant to the tens of thousands who have been affected by this drastic practice, and whose right to an effective remedy continues to be violated. The submission complements an earlier submission by the same NGOs dated 29 October 2021 (available here) on general measures Türkiye has an obligation to take to implement the Court’s judgment and responds to the Government’s Action Report submitted to the Committee of Ministers on 31 January 2022 requesting the closure of the case. The NGOs urge the Committee of Ministers to exercise robust oversight of this important case, and to adopt a holistic approach to implementation and reparation in the case. While this includes addressing the situation of the applicant, the Committee’s attention should not be limited to the narrow circumstances of this particular case, as it represents widespread and systematic violations of similar nature which have in no way been addressed or remedied. The NGOs urge the Committee of Ministers to: i. Request Türkiye to provide information on the detailed facts and figures about the summary dismissal of public sector workers under the state of emergency and its implications; ii. Urge Türkiye to provide information on the consistent and interpretational practice of administrative courts and labour courts ensure that they comply with the concepts of legality, foreseeability and arbitrary interference in dismissal cases as required by the ECtHR’s judgment; iii. Urge Türkiye to revise its Action Report and formulate clearly the necessary steps to ensure that the State of Emergency Measures Inquiry Commission, labour courts, administrative courts and other domestic administrative and judicial avenues in Türkiye are independent and impartial and they offer an effective review of the cases of dismissed public sector workers; iv. Ensure that the domestic authorities, including the Constitutional Court, provide for effective remedies for the breaches of the rights that the ECtHR has identified, namely the right to a fair trial and respect for private and family life, of those dismissed under the state of emergency; v. Invite Türkiye to take into account in its revised Action Report the issues raised by the Council of Europe Commissioner for Human Rights in her February 2020 report36 and by the NGOs in this submission and their previous submission of October 2021;37 vi. Urge Türkiye to adopt a definitive time-limit within which the domestic authorities should conclude a full, fair and effective determination of challenges to the dismissal decisions, taking into account the lapse of some five years since the first dismissals took place; and vii. Ensure that Mr. Pişkin and other the dismissed public sector workers who obtained a decision of violation and/or reinstatement are provided with full reparation, including restitution and appropriate compensation and guarantees of non-repetition.

Council of Europe Ministers should take further steps at their 1443rd 20-22 September 2022 meeting to ensure that the serious threat to the Convention system by Türkiye is treated seriously and brought to an end. Turkey Human Rights Litigation Support Project, Human Rights Watch and the International Commission of Jurists presented on 1 September 2022 a joint Rule 9.2 to the Council of Europe Committee of Ministers on the implementation of the European Court of Human Rights judgments in the case of Kavala v. Turkey (Application no. 28749/18) and the Proceedings under Article 46 (4) in the case of Kavala v. Türkiye [GC] (Application no. 28749/18). On 11 July 2022, the Grand Chamber of the the European Court of Human Rights issued a historic judgment in the infringement proceedings against Türkiye under Article 46(4) of the European Convention on Human Rights for the state’s failure to implement the Court’s Kavala v. Turkey 2019 judgment. The Court condemned Türkiye’s failure to fulfil its obligation to abide by its ruling in the case, in particular by refusing to release Osman Kavala. Despite this significant finding, in its submission to the Committee of Ministers dated 19 July 2022, the Turkish government continues to defy the Court’s order to release Mr Kavala and purports to justify his continued detention, this time on the basis of his latest conviction by the Istanbul 13th Assize Court. In a widely criticised judgment delivered on 25 April 2022, the Turkish court sentenced Mr Kavala to aggravated life imprisonment on charges of attempting to overthrow the government (under Article 312 of the Criminal Code) for his alleged role in the 2013 Gezi Park protests. In the submission presented to the Committee ahead of its 1443rd Human Rights meetings between 20 and 22 September 2022, the NGOs underscore the key role that the Committee’s supervision will play in ensuring Türkiye’s compliance with the judgment, and international oversight. The NGOs provide views on four central issues relevant to the current state of proceedings: - The government’s claim that the ongoing detention of Mr Kavala does not fall within the scope of the 10 December 2019 and 11 July 2022 judgments of the ECtHR, which is profoundly misleading and in direct defiance of the Court’s rulings. - The government’s false argument that the Grand Chamber did not address the April 2022 conviction of the applicant in its July 2022 judgment. - The imperative that Mr. Kavala be released immediately as part of the appropriate and urgent response to the Grand Chamber judgment. - The necessity of the Committee increasing its efforts to secure the release of Mr Kavala by effectively using all designated legal, political, diplomatic, and financial tools in hand while continuing to firmly condemn Türkiye’s refusal to implement the judgment. The NGOs urge the Committee to: Continue disregarding the false and misleading arguments made by the Turkish government, including those addressed in the submission, and condemn firmly Türkiye’s ongoing attempts to avoid executing the judgments. Use all legal, political, diplomatic, and financial tools designated in the Convention system to increase the pressure on Türkiye to secure the immediate release of Mr Kavala. This includes efforts to ensure the direct and continuing engagement, through all available channels, by member states, the Secretary General, the PACE, and all other Council of Europe institutions. Keep this case high on the agenda of the Council of Europe institutions and member states in any relations and talks with Türkiye and identify it as one of the main conditions for maintaining constructive co-operation with the country.

The Grand Chamber of the European Court of Human Rights has handed down a historic judgment in proceedings initiated by the Council of Europe’s Committee of Ministers against Türkiye for its failure to implement judgement from the Court in relation to imprisoned human rights defender, Osman Kavala. Today, in Kavala v. Türkiye the Court found that Türkiye failed to fulfil its obligation under Article 46(1) of the European Convention on Human Rights to comply with its judgment issued on 10 December 2019. The Turkey Human Rights Litigation Support Project, and Human Rights Watch today welcomed the judgment, as an important step towards accountability for Türkiye’s systemic disregard for the Convention system and as recognition of the urgency of implementing the Court’s order to release human rights defender Osman Kavala. The two organizations -joined by the International Commission of Jurists- had repeatedly recommended infringement proceedings be brought against Türkiye for its failure to comply with the judgment in Kavala’s case, which epitomises the evisceration of respect for human rights in Turkey today. Their submissions to the Committee of Ministers are available here and here. In its judgment announced today, the Court held that “Türkiye has failed to fulfil its obligation under Article 46§1 to abide by the Kavala v. Türkiye judgment of 10 December 2019”. The European Court underlined that “it’s finding of a violation of Article 18 taken together with Article 5 in the Kavala judgment had vitiated any action resulting from the charges related to the Gezi Park events and the attempted coup. It is nonetheless clear that the domestic proceedings subsequent to the above judgment, which resulted first in an acquittal and then a conviction, have not made it possible to remedy the problems identified in the Kavala judgment” (para. 172). “This is the only second time -after Mammadov v. Azerbaijan- the ECtHR has ever conducted infringement proceedings and determined that a member state has not complied with a European Court judgment. It is an acknowledgement of Türkiye’s ever-deepening rule of law crisis which has involved seriously undermining the Convention system and the escalating use of criminal law for political purposes ” said Helen Duffy of the Turkey Litigation Support Project. In the judgment of 10 December 2019, the Court held that Kavala was prosecuted and held in pretrial detention since November 2017 on the basis of his human rights activities. The court found that the Turkish authorities had pursued an ulterior purpose of silencing Kavala as a human rights defender and that by using detention for political ends Türkiye had violated Kavala’s right to liberty and security (article 5), and prohibition from restricting the Convention rights for the purposes other than those allowed under the Convention (article 18). Although in the December 2019 judgment the Court ordered Kavala’s immediate release as a first step to implement the judgment, the Turkish authorities have ignored the court’s legally binding ruling. In its supervision of the judgment implementation process, the Committee of Ministers took numerous steps calling for Kavala’s release and the full restoration of his rights to ensure implementation (see, among others, here, here and here). As the three NGOs made clear to the Committee of Ministers in pressing for infringement proceedings, and Mr Kavala’s counsel pleaded before the Court (paras. 118-124), the Turkish courts and prosecutors, on the other hand, have engaged in a series of tactics to circumvent the authority of the European Court and the Council of Europe. They have issued sham release orders, initiated multiple criminal proceedings against Kavala on the same facts, disjoined and re-joined case files accusing him of bogus offenses. The Grand Chamber judgment addresses these practices of the Turkish authorities by stating that “the measures indicated by Türkiye do not permit it to conclude that the State Party acted in ‘good faith’, in a manner compatible with the ‘conclusions and spirit’ of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment ” (para. 173). Most recently, after having spent four-and-a-half years in detention on baseless charges, Kavala was sentenced to life in prison without parole on charges of attempting to overthrow the government on 25 April 2022 by an Istanbul assize court. The charges refer to his alleged leading role in mass protests in 2013 that began in Istanbul’s Gezi Park (for a detailed explanatory note on Kavala case see here). “The Grand Chamber judgment in the case of Kavala v. Türkiye is a further demonstration of Türkiye’s persistent failure to respect its international human rights obligations, and that implementation of the court’s judgments is key to the effectiveness of the European human rights system” said Aisling Reidy, Senior Legal Adviser at Human Rights Watch. “As the European Court has now confirmed Türkiye’s failure to execute the Kavala judgment of 10 December 2019, the Committee of Ministers needs urgently to take all feasible measures to ensure the judgement is respected and Kavala released” she continued. The Committee of Ministers is expected to resume its supervision process and take more robust steps to discharge its mandate of ensuring the necessary individual and general measures are taken by Türkiye to implement the court’s ruling. “Once again, we call for the immediate release of Osman Kavala, cleared of all charges.” said Helen Duffy, “the Grand Chamber’s judgment finding violation sends an important signal to Türkiye that it cannot use judicial tactics to evade its international obligations, including bringing forward multiple criminal proceedings on the same facts or handing down prison sentences based on non-Convention compliant charges.” For more information, please contact (English, Turkish): info@turkeylitigationsupport.com

The prolonged and unlawful detention of Selahattin Demirtaş constitutes a serious breach of his human rights and represents a deepening of the rule of law crisis in Turkey. The Turkish authorities should release him from detention, drop the abusive criminal proceedings against him and refrain from weaponising the law to stifle the exercise of free expression in public debate. In a joint submission to the Committee of Ministers of the Council of Europe (CM), the Turkey Human Rights Litigation Support Project (TLSP), ARTICLE 19, Human Rights Watch (HRW), the International Commission of Jurists (ICJ) and the International Federation for Human Rights (FIDH) urge the CM to renew its earlier call for the immediate release of Demirtaş and take the necessary steps to launch infringement proceedings against Turkey if it fails to release him before the next CM Human Rights meeting on 8-10 June 2022. The submission focuses on the stark failure of Turkey to implement Selahattin Demirtaş v. Turkey (No.2) (Application no. 14305/17) European Court of Human Rights (ECtHR) Grand Chamber judgment of 22 December 2020, in which the Court ordered the politician’s immediate release. The submission refutes the recent claims by the Turkish Government that Demirtaş's ongoing detention is related to “new evidence” that is substantially different from that examined by the ECtHR. It argues that Demirtaş’s prolonged pre-trial detention clearly falls within the scope of the Grand Chamber’s judgment and continues to be in clear violation of his human rights. “The Demirtaş case is one of many in which the Turkish state is abusing the criminal law to silence political opponents and gradually dismantle democracy. By refusing to follow an explicit release order by the ECtHR, it is plainly seeking to circumvent the Convention system. The stakes could therefore hardly be higher. It is imperative that the CM takes all measures to ensure the Court’s judgment is given immediate effect.” said Helen Duffy of the Turkey Human Rights Litigation Support Project. Selahattin Demirtaş is the former co-chair of the People’s Democratic Party (HDP), a pro-Kurdish rights political party and the second opposition party in Turkey’s parliament. Demirtaş has been imprisoned since 2016 and is held in Edirne F-Type Prison in western Turkey. In 2020, the Grand Chamber of the ECtHR ruled that Turkey’s detention of Demirtaş was politically motivated and aimed to prevent him from carrying out his political activities and found a rare violation of Article 18 of the European Convention on Human Rights, which prohibits rights restrictions for abusive purposes. The Turkish authorities have continuously failed to comply with the Grand Chamber’s order to immediately release Demirtaş and engaged in series of tactics to circumvent the binding ECtHR judgment. In previous submissions in February 2021 and July 2021 the NGOs argued that Demirtaş’s ongoing detention was based on the same set of facts and incidents that were already found insufficient by the ECtHR. In September 2021, the CM explicitly confirmed that the ECtHR judgment applied to Demirtaş’s ongoing detention and conviction. Despite this, in 2022, the Turkish Government has again attempted to justify his ongoing detention by reference to purportedly new evidence which had emerged after the ECtHR’s judgment and had thus not been examined by the ECtHR within the scope of the present case. “The Turkish Government is openly defying its obligation to implement the Grand Chamber judgment,” said Sarah Clarke, Head of Europe and Central Asia team at ARTICLE 19. “The new alleged piece of evidence is claimed to stem from events that took place over seven years ago. Yet, the authorities fail to provide clear and reliable information on how this ‘new evidence’ was obtained. It also conveniently came to light just in time when Turkey is facing stronger pressures from the international community,” she added. The “new evidence” is substantially based on anonymous witnesses, but there is an extremely worrying practice in the country of the abuse of such witnesses, as Human Rights Watch analysed. “Human Rights Watch’s own research shows that prosecutors bringing terrorism cases increasingly seek to rely on vague and generalized testimonies of anonymous witnesses who make untestable assertions about suspects. This is compounded by domestic courts failing to probe this kind of alleged evidence, or to question witnesses’ motivation or why their identity has to be protected,” said Aisling Reidy, senior legal advisor at Human Rights Watch. “In this respect, we have concerns that the so-called new evidence produced against Mr Demirtas fits with this worrying pattern.” These abusive judicial tactics are part of a strategy of persecution designed to silence Demirtaş and all independent voices who dare to oppose the Government. The continued criminal proceedings against Demirtaş are politically motivated and massively curtail freedom of expression and as such they have no place in any democratic society. “Mr. Demirtaş’s ongoing pre-trial detention is based on the same factual context pertaining to events that took place 7 years ago, which the Grand Chamber judgment ordering his release already covers. The Turkish Government must demonstrate that the alleged “new evidence” against Mr. Demirtaş is not simply a means to circumvent the judgment, which it fails to do. The Government’s refusal to comply with the judgment and release him is a prolongation of the violation of his rights, and also damages pluralism and freedom of political debate in Turkey." Elena Crespi, Western Europe Programme Director of the International Federation for Human Rights said. In the submission, the NGOs urge the CM to consider the following recommendations to secure compliance with the ECtHR judgment: · Insist on the immediate release of Selahattin Demirtaş as required by the ECtHR judgment; · Confirm that the Grand Chamber judgment clearly applies to Demirtaş’s ongoing pre-trial detention, the criminal proceedings under which he was convicted, and to any other ongoing or future proceedings remaining within the scope of the Grand Chamber judgment; · Instruct Turkey to end the persecution through abusive criminal proceedings of Demirtaş, in particular by dropping all charges under which he has been investigated, prosecuted or detained which have pursued an ulterior purpose of stifling pluralism and limiting freedom of public debate; · Emphasise the continuing nature of the breach and that full restitution (restitutio in integrum) in this case, includes the cessation of the persecution of Demirtaş through criminal proceedings solely based on his political activities and his political speech; · In the event that he remains in detention at the time of the 1436DH 8-10 June 2022 meeting, to take necessary steps to trigger infringement proceedings against Turkey under Article 46(4) of the Convention on the ground of its continued failure to comply with the ECtHR Grand Chamber’s judgment.

Turkey must release the 11 women’s right defenders detained arbitrarily, cease the judicial harassment of these women, and conduct effective investigations into their allegations of inhuman and degrading treatment during arrest, police custody and pre-trial detention. On 16 March 2022, Turkish law enforcement officials raided the houses of 24 women human rights defenders, arresting them in connection with their activism including their participation in peaceful demonstrations during International Women’s Day on 8 March. 13 women were released pending trial while Jale Okkan, Emine Kaya, Sakine Karadeniz, Fatma Kavmaz, Remziye Sızıcı, Gülşen Özer, Esma Efetürk, Feyme Filiz Buluttekin, Bahar Karakaş Uluğ, Songül Kapancı and Fatma Yıldızhan are currently in pre-trial detention. Serious allegations have been made in relation to the inhuman and degrading treatment of the women human rights defenders during their arrest, police custody and pre-trial detention, including intrusive strip searches in the presence of male prison guards. The letter sent by Turkey Human Rights Litigation Support Project, Association for Monitoring Equal Rights (Eşit Haklar için İzleme Derneği), Civil Rights Defenders, Foundation for Society and Legal Studies (Toplum ve Hukuk Araştırmaları Vakfı, TOHAV), Human Rights Agenda Association (İnsan Hakları Gündemi Derneği, İHGD), Life Memory Freedom Association (Yaşam Bellek Özgürlük Derneği), London Legal Group, Media and Law Studies Association (Medya ve Hukuk Çalışmaları Derneği, MLSA), Research Institute on Turkey (RIT) and Truth Justice Memory Center (Hakikat Adalet Hafıza Merkezi) provides background information on the recent backsliding of the rule of law and democracy in Turkey, as well as the shrinking protection of women’s rights protection and the targeting of Kurdish women human rights defenders (issues already raised in two previous letters - here and here). It outlines the human rights violations that took place in the context of the arrest and detention of the women human rights defenders, highlighting Turkey’s international law obligations in this respect. Signatories of the joint urgent action letter request immediate attention from the UN Mandate Holders to whom the letter is addressed and ask the Mandate Holders to urge the Turkish Government, including but not limited to: 1. End the arbitrary and unlawful imprisonment and pre-trial detention of women’s rights activists Jale Okkan, Emine Kaya, Sakine Karadeniz, Fatma Kavmaz, Remziye Sızıcı, Gülşen Özer, Esma Efetürk, Feyme Filiz Buluttekin, Bahar Karakaş Uluğ, Songül Kapancı and Fatma Yıldızhan. 2. Accommodate effective investigations of the allegations of abuses and inhuman and/or degrading treatment in Diyarbakır Prison; and, where relevant, to secure the prosecution and punishment of the authorities involved. 3. Stop all forms of harassment, including the judicial harassment, against these individuals as well as against other women rights defenders, and allow the enjoyment of their right of freedom of expression, assembly and association within civil society in the advocacy of women’s rights without fear of intimidation or improper interference. 4. Make its anti-terrorism legislation compliant with international human rights standards and stop prosecuting the expression of critical opinions and right to assembly. 5. Reverse its decision to withdraw from the Istanbul Convention.

In an opinion piece for the European Implementation Network, Ayşe Bingöl Demir shares her analysis about the futher human rights, rule of law and democratic backsliding which took place in 2021 in Turkey, and how the Osman Kavala case will be a test case for the Council of Europe and Turkey relations in 2022: “The human rights community of Turkey was happy to leave behind the difficult year of 2021, but it also welcomed 2022 reluctantly. Because it is not possible to foresee how far -and where else- the non-stop back peddling of the AKP government in human rights, rule of law and democratic standards will go. Led by President Recep Tayyip Erdogan, the government’s adherence to an authoritarian regime, especially since the July 2016 coup attempt, has indeed become more fearless and aggressive over the last couple of years. The extent of the damage of this period to the country’s founding pillars -which already had had serious existential issues before- has caused is yet to be seen. The recent Human Rights Watch report, however, gives us a hint of what it looks like: Turkey’s human rights record has been set back by decades. Not surprisingly, despite this extremely serious human rights, rule of law and democratic backsliding in the country, the reaction of the international community has been considerably limited. Turkey has a long-standing relationship with the EU, it is a NATO member and part of many UN monitoring mechanisms. Thus, the country has been one of the earliest members of the Council of Europe. The European Court of Human Rights, the most important guardian of the Council of Europe’s founding principles, has been determining individual applications from Turkey for over three decades. Moreover, the country has been an ally and trade partner of a number of western democracies, including the United Kingdom, Germany and the USA despite some setbacks in relations here and there. In an ideal world, it would not be unreasonable to expect that a country that is part of a vibrant international relations circle would face consequences for its systemic failure to meet its international human rights obligations. But the case of Turkey is a clear illustration that we are far from experiencing the ‘ideal’ as none of these institutions or countries has so far taken an effective and meaningful stand to address the human rights situation in the country. This lack of proper response to the government stifling a whole population with its authoritarian practices has been seen as a contributing factor to the deteriorating situation.”

Turkey must release Aysel Tuğluk and other severely ill prisoners who are not fit to remain in prison immediately in compliance with Turkey’s domestic and international law obligations. 43 bar associations and lawyers and human rights organizations from across the world and Turkey wrote an urgent action letter (available here) to the United Nations (UN) special mandate holders drawing their attention to the imminent risk to health and life of ill prisoner Aysel Tuğluk held in Kocaeli Kandıra F-Type Prison, Turkey since December 2016. The letter dated 20 January 2022 has been addressed to the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Special Rapporteur on the Independence of Judges and Lawyers, the UN Special Rapporteur on the Situation of Human Rights Defenders; the UN Working Group on Arbitrary Detention, the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, and the UN Special Rapporteur on Minority Issues. The letter gives a detailed analysis of the case of Aysel Tuğluk, a Kurdish politician and human rights lawyer, who is kept in prison despite being severely ill. The letter underlines that: According to medical reports, statements from Ms. Tuğluk’s visitors and lawyers, and publicly accessible information on the case, Ms. Tuğluk’s health has been rapidly deteriorating since her diagnosis of dementia and she is not healthy enough to survive much longer in the conditions to which she is subject in Kocaeli F-Type Prison. Ms. Tuğluk’s continued imprisonment despite her serious health issues and her vulnerabilities to both conditions in the prison and the ongoing Covid-19 pandemic show a failure of Turkish authorities to adhere to both their own domestic laws and international standards with regard to the treatment of prisoners. The letter also provides the UN special mandate holders with general information on the systemic problems related to the condition of detention in Turkish prisons which cause serious human rights abuses. In the light of the foregoing, the organizations request the Special Procedures’ urgent action and invite the mandate holders to call on the Turkish authorities to: i. immediately release Ayşe Tuğluk and other severely ill prisoners who are not fit to remain in prison in compliance with Turkey’s domestic and international law obligations; ii. communicate concerns in relation to violation of prisoners’ rights to medical services and to investigate the circumstances behind the refusal to release severely ill prisoners; iii. ensure that all prisons in Turkey have an adequate number of medical staff, including doctors and that they work freely without any undue interference with their work; iv. urge the Turkish Authorities to introduce and enforce legal provisions guaranteeing impartial and fair procedures for the medical evaluation of all ill prisoners and the release of seriously ill prisoners on compassionate grounds; v. ensure the Turkish Government allows greater accountability and transparency of prison living conditions by enabling visits and inspections from human rights groups and nongovernmental entities. The letter was endorsed by Turkey Human Rights Litigation Support Project, the United Kingdom; AĞ-DA Toplumsal Cinsiyet Eşitliği Dayanışma Ağı (Gender Equality Solidarity Network), Turkey; Asociación Libre de Abogadas y Abogados, (Free Association of Lawyers, ALA), Madrid, Spain; Batman Barosu (Batman Bar Association), Turkey; Bingöl Barosu (Bingöl Bar Association), Turkey; Conseil national des barreaux (CNB), France; Çağdaş Hukukçular Derneği (Progressive Lawyers’ Association, ÇHD), Turkey; Dersim -Tunceli- Barosu (Dersim -Tunceli- Bar Association), Turkey; Diyarbakır Barosu (Diyarbakır Bar Association), Turkey; Düşünce Suçu(!?)na Karşı Girişim (Initiative for Freedom of Expression), Turkey; Eşit Haklar İçin İzleme Derneği (Association for Monitoring Equal Rights), Turkey; European Association of Lawyers for Democracy and World Human Rights (ELDH); European Democratic Lawyers (AED); Hak İnisiyatifi Derneği (the Rights Initiative), Turkey; Hakkari Barosu (Hakkari Bar Association), Turkey; Human Rights Committee of the German Bar Association (Deutscher Anwaltverein, DAV), Germany; Indian Association of Lawyers, India; İnsan Hakları Gündemi Derneği (Human Rights Agenda Association), Turkey; International Association of Democratic Lawyers (IADL); International Bar Association's Human Rights Institute (IBAHRI); International Commission of Jurists (ICJ); International Federation for Human Rights (FIDH); International Observatory for Lawyers at Risk (OIAD); Lawyers’ Rights Watch Canada (LRWC), Canada; London Legal Group, the United Kingdom; Mardin Barosu (Mardin Bar Association), Turkey; Medya ve Hukuk Çalışmaları Derneği (Media and Law Studies Association, MLSA), Turkey; Muş Barosu (Muş Bar Association), Turkey; National Union of Peoples' Lawyers (NUPL), Philippines; Özgürlük için Hukukçular Derneği (Association of Lawyers for Freedom, ÖHD), Turkey; P24 (Platform for Independent Journalism), Turkey; Republikanischer Anwältinnen - und Anwälteverein e.V. (Republican Lawyers Association, RAV), Germany; Rosa Kadın Derneği (Rosa Women’s Association), Turkey; Siirt Barosu (Siirt Bar Association), Turkey; Syndicat des Avocats pour la Démocratie: le SAD, Belgium; Şanlıurfa Barosu (Şanlıurfa Bar Association), Turkey; Şırnak Barosu (Şırnak Bar Association), Turkey; The Center for Research and Elaboration on Democracy/ Group of International Legal Intervention (CRED/GIGI); The Italian Association of Democratic Lawyers (Giuristi Democratici), Italy; The National Association of Democratic Lawyers, (NADEL), South Africa; Toplum ve Hukuk Araştırmaları Vakfı (Foundation for Society and Legal Studies), Turkey; Turkish-German Forum of Culture, Germany; and Van Barosu (Van Bar Association), Turkey

Failure To Free Rights Defender Osman Kavala Triggers Infringement Process The Council of Europe’s Committee of Ministers decision notifying Turkey it will start infringement proceedings over its failure to comply with the European Court of Human Rights’ (ECtHR) order to free the jailed human rights defender Osman Kavala is a welcome step, Human Rights Watch, the International Commission of Jurists, and the Turkey Litigation Support Project said today. The three organizations have repeatedly recommended this necessary response in submissions to the Committee over the past year. In its decision announced on December 3, the Committee states that it “serves formal notice on Turkey of its intention, at its 1423rd meeting on 2 February 2022, to refer to the [European ]Court … the question whether Turkey has failed to fulfil its obligation” to implement the European Court of Human Rights Kavala judgment and “invites Turkey to submit in concise form its view on this question by 19 January 2022 at the latest.” This means that at its 2 February 2021 meeting, the Committee will proceed with the infringement procedure by reverting to the European Court of Human Rights to ask the Court to provide an opinion on whether Turkey has failed to implement the judgment. If the Court agrees that it has, the Committee may then order further measures against Turkey. The Committee’s decision to give Turkey the opportunity to respond to the Committee’s decision by 19 January 2022, is conveniently timed two days after the next trial hearing against Osman Kavala and gives Turkey the opportunity to begin to comply with the European Court decision by releasing Kavala before the infringement process advances. “In the face of Turkey’s defiance of its obligation to carry out a key judgment of the European Court of Human Rights, the Committee of Ministers has taken the right course in notifying Turkey that it will trigger infringement proceedings,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “As this is only the second time the Council of Europe has triggered such a sanction process against a member state, the decision is an acknowledgement of Turkey’s rule of law crisis.” The European Court ruled on 10 December 2019, that by holding Kavala in pretrial detention since November 2017 and prosecuting him on the basis of his human rights activities, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as a human rights defender.” The court found that by using detention for political ends, Turkey had violated Kavala’s rights, including the right to liberty, and had abused the discretion given to governments to impose legitimate limitations on rights (articles 5 and 18 of the European Convention on Human Rights respectively). The court took the rare step of ordering Osman Kavala’s immediate release. The Kavala judgment is legally binding, yet the Turkish authorities have snubbed the Strasbourg court and ignored the decisions of the Committee of Ministers, representing the Council of Europe’s 47 member states, calling for his release and the full restoration of his rights. The Turkish courts and prosecutors have engaged in a series of tactics to circumvent the authority of the European Court and the Council of Europe. They have issued sham release orders, initiated multiple criminal proceedings against Kavala on the same facts, disjoined and re-joined case files accusing him of bogus offenses. Most recently Turkey merged the proceedings against Kavala with an entirely separate and much older case against football fans and others charged with a demonstration during 2013 protests a few kilometers away from Istanbul’s Gezi Park. All the domestic court decisions have been for the aim of prolonging Kavala’s detention and extending the life of baseless prosecutions. “The Committee addresses in strongest terms Turkey’s notorious failure to implement the European Court’s clear judgment and release the human rights defender Osman Kavala. It is a further striking reminder to Turkey, by other members states, of its commitments to the Council of Europe and obligation to implement the binding judgments of the Court.” said Ayse Bingol Demir of the Turkey Litigation Support Project. “At a time that the international human rights protection mechanisms are globally challenged, it is extremely valuable for the international community to see that the Council of Europe members states are adamant in prioritizing human rights and willing to take even the most challenging decisions to ensure due protection. This decision is a strong tool that needs to be used by all relevant actors to increase pressure on Turkey to end its problematic human rights practices, the first step of which being the immediate release of Osman Kavala.” The Committee of Ministers has the authority to take infringement proceedings against a Council of Europe member state that refuses to carry out European Court judgments. It was used for the first time in 2017 when the government of Azerbaijan repeatedly refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov. Infringement proceedings are provided for under article 46/4 of the European Convention on Human Rights. A vote of two-thirds of the Committee of Ministers is needed to start infringement proceedings. Once the process is triggered, the case reverts to the European Court for a further opinion on whether the state has met its obligations to comply with the judgment. If the European Court confirms that Turkey has failed to carry out the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey’s voting rights or membership of the Council of Europe. “Once again, we call for the immediate release of Osman Kavala, cleared of all charges. Judgments of the European Court of Human Rights must be complied with and not intentionally eluded,” said Massimo Frigo, Senior Legal Adviser of the International Commission of Jurists, “The Committee’s decision to trigger infringement proceedings means that implementation of this judgment is key for the effectiveness of the European human rights system and a further demonstration of the dire systemic crisis of Turkey’s rule of law.” For more information, please contact (English, Turkish): info@turkeylitigationsupport.com

A brief on academic freedom has been filed at the European Court of Human Rights today in the “Academics for Peace” case (Kamuran AKIN v. Turkey and 42 other applications, Application nos. 72796/16, 72798/16, 72799/16 et al). The third party intervention was presented by Profs. Helen Duffy and Philip Leach (co-supervisors in the Turkey Litigation Support Project (TLSP)) on behalf of a group of leading academics, and addresses the nature of academic freedom, its significance for human rights and democracy, and its legal protection in international human rights law. Another third party intervention was submitted in the same case on 10 December 2021 by the TLSP in which the Court was provided with written comments on one of the core issues arising in the applications: the availability and effectiveness of domestic remedies in the context of the application of emergency measures in Turkey. Kamuran AKIN v. Turkey and 42 other applications emerge from a statement issued on 11 January 2016 by a group of academics from diverse Turkish universities, entitled “We will not be a party to this crime,” which critically questioned the Turkish Government’s role in the conflict in South-east Turkey and associated serious violations. The day after the “Academics for Peace Petition” was published, President Erdoğan described signatories as “so-called intellectuals” and “pseudo academics” and accused them of treason, which was followed by their public vilification as “terrorists,” and they were subject to disciplinary, administrative and criminal proceedings across the country. Following the July 2016 coup attempt, hundreds of academics, including the applicants, were then dismissed from their university positions through a series of emergency decrees. The brief filed today by the Coalition of Academic Interveners focuses first on the nature of ‘academic freedom,’ embracing individual and institutional autonomy from the state, and a public and social role (informing healthy democratic discourse including criticism of government), both of which preclude requiring academic ‘loyalty’ to the state as the Turkish state purports to do. The brief explains the significance of academic freedom for the array of human rights under the European Convention on Human Rights (ECHR) and broader international human rights law - for the academics directly affected, for the full range of rights of many others, and for the fundamental values underpinning the ECHR and democratic systems. The intervention calls for the Court’s considered attention to the issue of academic freedom which remain relatively underexplored in ECHR jurisprudence, yet has significant implications for the interpretation and application of the Convention: informing states’ ‘positive obligations’ to create an ‘enabling environment’ for academic freedom, and requiring a strict approach to permissible restrictions on rights. The brief questions whether measures directed at curtailing the academic function can be justified as restrictions a) provided for in clear foreseeable law, b) as necessary and proportionate, and c) whether they are subject to meaningful remedies and review within Turkey. It questions whether the measures can be justified by reference to the ‘emergency’ following the attempted coup in July 2016. It urges the Court to consider whether they pursued an ‘ulterior purpose’ under Article 18, representing the latest in a line of societal actors to be targeted for their expression of opposition to the Turkish government. The brief calls on the Court to robustly apply the ECHR and international standards to safeguard academic autonomy and freedom of expression on matters of public concern. The issue is timely and pressing in the context of alarming growth in attacks on academic freedom in Turkey and around the globe, and its insidious implications for closing democratic space. The brief filed on 10 December 2021 addresses the issue of the availability and effectiveness of domestic remedies in the context of the application of the state of emergency measures concerning dismissals of public sector workers in Turkey. In doing so, the brief first focuses on the right to an effective remedy and the extent to which the Inquiry Commission on the State of Emergency Measures (Commission) ensures necessary guarantees. Then, it considers whether it is possible to remedy any shortcomings of the Commission in subsequent appeal proceedings before designated administrative courts or the Turkish Constitutional Court. The intervention points out the serious questions about the independence and impartiality of the Commission and the domestic courts. It shows that domestic authorities have not examined the complaints of dismissed public sector workers in a timely manner. Finally, it also explains how the procedure before the Commission and the administrative courts raise several serious shortcomings and that the remit of those domestic authorities’ decisions is overly restricted. The third party intervention filed on 10 December 2021 is available in English and in Turkish . The submission made on 20 December 2021 including the list of interveners is available in English and in Turkish. For more information: on the intervention by the Coalition of Academic Interveners, Helen Duffy (helen@rightsinpractice.org) or on the intervention by the TLSP and the broader context in Turkey, Ayse Bingol Demir (info@turkeylitigationsupport.com). (Translation of the 3rd party interventions into Turkish from English: Eren Buğlalılar)

Turkey Defies the European Court Council of Europe Committee Should Trigger Infringement Proceedings The Council of Europe Committee of Ministers should trigger infringement proceedings against Turkey at its 14-16 September 2021 meeting for its failure to implement the European Court of Human Rights’ (ECtHR) judgment ordering the release of the jailed human rights defender Osman Kavala, Human Rights Watch, the International Commission of Jurists, and the Turkey Litigation Support Project said today. The three nongovernmental organizations made the recommendation in a submission to the committee providing a full update on the latest developments in the ongoing legal proceedings against Kavala. The committee’s September meeting will also examine the state of implementation of another leading ECtHR judgment ordering the immediate release of the Kurdish politician Selahattin Demirtaş, which the Turkish government continues to defy. The three organizations, along with Article 19 and the International Federation for Human Rights, have also made a submission to the Committee of Ministers on developments in the Demirtaş case, calling on the committee to urge the Turkish government to ensure his immediate release. “In the face of Turkey’s persistent and flagrant defiance of its obligation to implement the Kavala judgment, the Committee of Ministers should trigger infringement proceedings against Turkey,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “The committee should also call for the immediate release of Demirtaş with a commitment to escalating measures if it does not happen.” The ECtHR ruled on 10 December 2019, that by holding Kavala in pretrial detention since November 2017 and prosecuting him on the basis of his human rights activities, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as a human rights defender.” Similarly, the ECtHR ruled on 22 December 2020, that by holding Demirtaş in pretrial detention since November 2016 and prosecuting him for activities and speeches protected under the European Convention on Human Rights (ECHR), the Turkish authorities sought to prevent him from carrying out his political activities. The court said that this deprived voters of their elected representative, and resulted in “stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society.” In both cases, the court found that by using detention for political ends, Turkey had violated Kavala’s and Demirtaş’s rights, including the right to liberty, and had abused the discretion given to governments to impose legitimate limitations on rights (articles 5 and 18 of the ECHR respectively). The court took the rare step of ordering both men’s immediate release. Both judgments are legally binding, yet the Turkish authorities have snubbed the Strasbourg court and ignored the Committee of Ministers’ decisions calling for the men’s release. The Turkish courts and prosecutors have engaged in a series of tactics to circumvent the authority of the ECtHR and the Council of Europe. They have issued repeated sham release orders, initiated multiple criminal proceedings on the same facts, repeatedly issued detention decisions while adopting unwarranted procedural decisions to prolong detention and baseless prosecutions, and expedited a conviction to prevent release from detention. “The Committee of Ministers should take note of the Turkish authorities’ repeated tactics in the Kavala and Demirtaş cases aimed at ensuring the prolongation of their unlawful detention and circumventing the authority of the European Court,” said Ayşe Bingöl Demir of the Turkey Litigation Support Project. “The committee should pursue robust measures against Turkey to press for full implementation of the judgments and end a cycle of malpractice which flagrantly violates Turkey’s obligations under the European Convention.” The Committee of Ministers has the authority to take infringement proceedings against a Council of Europe member state that refuses to carry out European Court judgments. It was used for the first time in 2017 when the government of Azerbaijan repeatedly refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov. Infringement proceedings are provided for under article 46/4 of the ECHR. Two-thirds of the Committee of Ministers need to vote to start infringement proceedings. Once the process is triggered, the case reverts to the ECtHR for a further opinion on whether the state has met its obligations to comply with the judgment. If the ECtHR confirms that Turkey has failed to carry out the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey’s voting rights or membership of the Council of Europe. For full details of the latest developments in the ongoing trial of Osman Kavala, see our joint submission to the Committee of Ministers: http://hudoc.exec.coe.int/eng?i=DH-DD(2021)836E For full details of the latest developments in the ongoing trial of Selahattin Demirtaş, see our joint submission to the Committee of Ministers: http://hudoc.exec.coe.int/eng?i=DH-DD(2021)759E

Turkey Flouts European Court Judgments Council of Europe Committee Should Trigger Infringement Proceedings The Council of Europe should insist that Turkey comply immediately with judgments from the European Court of Human Rights (ECtHR), or face infringement proceedings, a group of leading nongovernmental organizations working on human rights in Turkey said today. An upcoming Council of Europe Committee of Ministers meeting on 7-9 June 2021, will review the Turkish government’s failure to implement two leading ECtHR judgments that ordered the immediate release of the human rights defender Osman Kavala and the Kurdish politician Selahattin Demirtaş. Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project urged the committee to use all available measures to require Turkey to rectify its flagrant non-compliance with its obligations, the court judgments, and the committee’s decisions on this matter. “The Committee of Ministers should be using every means it has to push Turkey to implement the Kavala and Demirtaş judgments,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “That means that the committee should be prepared to trigger infringement proceedings against Turkey if it persists with its defiance of the European Court’s binding judgment in favor of Kavala, and to call for the immediate release of Demirtaş with a commitment to escalate measures if it does not happen.” The three groups repeated their March 2021 call for the committee to commence infringement proceedings against Turkey for flouting its decisions requesting Kavala’s release and urged the committee to issue a second decision for Demirtaş’s immediate release. The committee should also make clear that if Demirtaş is not released, it will take further action at its September session. The ECtHR ruled on 10 December 2019, that by holding Kavala in pretrial detention since November 2017 and prosecuting him on the basis of his human rights activities, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as a human rights defender.” Similarly, the ECtHR ruled on 22 December 2020, that by holding Demirtaş in pretrial detention since November 2016 and prosecuting him for his activities and speeches protected under the European Convention on Human Rights (ECHR), the Turkish authorities had pursued an ulterior purpose of preventing him from carrying out his political activities, depriving voters of their elected representative, and “stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society.” In both cases, the Court found that by using detention for political ends, Turkey had violated the right to liberty and other rights and had misused the discretion given to governments to impose limitations on rights for illegitimate purposes (articles 5 and 18 of the ECHR respectively). The Court took the rare step of ordering their immediate release. Despite the fact that the landmark judgments are legally binding, the Turkish authorities have snubbed the Strasbourg court and ignored the Committee of Ministers’ decisions calling for the men’s release. “Turkish prosecutors and judges have sought to circumvent the authority of the European Court by adopting the tactic of opening new criminal proceedings against Kavala and Demirtaş based on the reclassification of the same facts,” said Helen Duffy of the Turkey Human Rights Litigation Support Project “This cynical non-compliance with the court’s judgments requires a robust response from the Committee of Ministers.” On 21 May when the retrial of Kavala for his alleged role in the 2013 Gezi Park protests opened, Turkish authorities merged that case with another concerning his alleged involvement in the 2016 coup attempt and espionage. The Istanbul 30th Assize Court hearing the case extended his detention. The next hearing against Kavala is scheduled for 6 August. In Demirtaş’s case, Ankara 22nd Assize Court on 19 April merged an existing case against him with a new case before it despite the fact that it involved the same or similar facts, which the European Court had held consisted of peaceful political speeches and activities protected under the ECHR. In the new case, the facts used as the evidence have been reclassified under different charges. The indictment now charges Demirtaş and 107 co-defendants with crimes that include attempting to undermine the unity and territorial integrity of the state, murder, and robbery, all on the basis of tweets and political speeches they made in the period before deadly protests that took place in southeast Turkey from 6-8 October 2014. Demirtaş’s co-defendants include current and former members of parliament from the Peoples’ Democratic Party (HDP). The first hearing of the merged cases against Demirtaş took place on 26 April. The next hearing is scheduled for 14 June. The Committee of Ministers has previously addressed the Turkish government’s efforts to circumvent the ECtHR judgments by bringing new criminal proceedings against Kavala and Demirtaş. In March, the committee decided that Kavala’s “continuing pretrial detention and the pending proceedings with respect to the charges regarding both the Gezi Park events and the coup attempt, despite the Court’s conclusion that both charges were not based on a ‘reasonable suspicion’ … reinforce the conclusion that the national authorities, including the courts, are failing to take into account the European Court’s findings.” The committee stressed that this undermined Turkey’s obligation under article 46 of the ECHR to implement the court’s judgments. With regard to Demirtaş, the Committee of Ministers said in March: “While taking note of the authorities’ submissions that the applicant’s current detention falls outside the scope of the Grand Chamber judgment ... and also that the events and charges for his current detention differ from those concerning his initial detention, [the Committee] considered that these arguments have been already examined and rejected by the Court.” The repeated orders by Turkish courts to prolong Kavala’s and Demirtaş’s unlawful detention blatantly disregards the European Court’s directive for their immediate release and the Committee of Ministers’ decisions reiterating the point, the three groups said. “Not only does the non-implementation of these judgments show Turkey’s failure to respect its international law obligations, but it also represents a serious challenge to the Council of Europe system for implementation of European Convention on Human Rights,” said Róisín Pillay from the International Commission of Jurists “This matter does not only have a serious impact on Kavala’s and Demirtaş’s rights, but also on the Convention system more broadly. The Committee must therefore not delay in ensuring this challenge is faced in line with the procedure provided under the Convention.” The Committee of Ministers has the authority to take infringement proceedings against a Council of Europe member state that refuses to carry out European Court judgments. It was used for the first time in 2017 when the government of Azerbaijan repeatedly refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov. Infringement proceedings are provided for under article 46/4 of the ECHR. Opening these proceedings requires the vote of two-thirds of the Committee of Ministers. Once the process is triggered, the case reverts to the ECtHR for a further opinion on whether the state has met its binding obligation to comply with the judgment. If the court confirms that Turkey has failed to carry out the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey’s voting rights or membership of the Council of Europe.

Council of Europe Body Should Require Turkey to Implement Demirtaş Judgment (Istanbul, March 4, 2021) – The Council of Europe Committee of Ministers should direct Turkey to release the Kurdish opposition politician Selahattin Demirtaş in compliance with a European Court of Human Rights judgment, five human rights groups said today. The five are ARTICLE 19, Human Rights Watch, the International Commission of Jurists, the International Federation for Human Rights, and the Turkey Human Rights Litigation Support Project. The groups have made a detailed joint submission to the Council of Europe’s Committee of Ministers, which oversees enforcement of the European Court of Human Rights (ECtHR) judgments, asking it to issue the decision at its meeting on March 9-11, 2021. The groups said that Turkey continues to violate Demirtaş’s rights by flouting a landmark judgment issued by the court on December 22, 2020, requiring his immediate release. “President Erdogan and senior Turkish officials have responded to the European Court’s judgment ordering Demirtaş’s release with false arguments that it does not apply to his current detention and that the court’s rulings are not binding on Turkey,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “The Committee of Ministers should call on Turkey to release Demirtaş immediately and leave no doubt that disregarding or attempting to bypass judgments of the Strasbourg court is unacceptable.” Selahattin Demirtaş, former co-chair of the Peoples’ Democratic Party (HDP), a pro-Kurdish rights opposition party to the government of President Recep Tayyip Erdoğan, has been held in Edirne F-Type prison in western Turkey since November 4, 2016. The Grand Chamber of the European Court of Human Rights ruled that in initially detaining Demirtaş and then prolonging his detention for over four years, the Turkish government pursued an ulterior purpose of preventing him from carrying out his political activities, depriving voters of their elected representative, and “stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society.” Ordering Demirtaş’s immediate release, the court found that Turkey had violated rights protected by Articles 5.1 and 5.3 (right to liberty) of the European Convention on Human Rights, Article 10 (right to freedom of expression), Article 3 Protocol 1 (the right to free and fair elections), and Article 18 (misuse of limitations on rights in the Convention), by pursuing Demirtaş’s detention for political ends. In finding the government acted in bad faith (Article 18 violation), the court notably refers to Demirtaş’s current detention, from September 20, 2019 which relates to an investigation into deadly protests in southeast Turkey on October 6-8, 2014. The Strasbourg court said what Turkey was attempting to do was “a new legal classification” of the same facts, because the same “acts and incidents” had formed the basis on which Demirtaş had been detained up until September 2, 2019, and for which he is already on trial. Finding a continuity between Demirtaş’s pretrial detention from November 4, 2016, to September 2, 2019, and again from September 20, 2019, to the present, the court termed the September 20 order a “return to pre-trial detention.” The Turkish government has rejected this finding and contends that Demirtaş is currently detained in the context of a case not covered by the European Court judgment. “As the European Court of Human Rights made clear, Demirtaş’s detention on September 20, 2019, was in fact not a separate detention but a ‘return to pre-trial detention’ and a continuing violation of his Convention rights,” said Róisín Pillay, Europe and Central Asia Director of the International Commission of Jurists. “The Committee of Ministers should press Turkey to immediately end this abuse of judicial proceedings aimed at harassing an opposition politician.” The groups’ submission provides a full analysis of political and legal developments since the issuing of the ECtHR Grand Chamber judgment – including a new indictment against Demirtaş – and repeated statements from Turkey’s president and senior officials that the Demirtaş judgment and European Court judgments in general are not binding on Turkey. “Charging such a prominent political figure with 30 serious ‘new’ offences based on political speeches mostly 6 years ago, which the Court already found to be protected, is pure repackaging – a thinly veiled attempt to circumvent compliance with the Court’s judgment requiring immediate release,” said Helen Duffy of the Turkey Human Rights Litigation Support Project. “The Grand Chamber already rejected earlier ‘reclassification’ attempts, and it is time for a robust response by the Committee of Ministers to break the cycle of evasion.” The groups urged the Committee of Ministers to place Demirtaş’s case under their enhanced procedures, treating it as a lead case, and to indicate that continued refusal to carry out the judgment may lead them to refer Turkey to the European Court for non-compliance. The groups urged the Committee of Ministers to call on the Turkish government to: Immediately release Demirtaş as required by the ECtHR judgment, and make clear that the judgment applies to his ongoing detention and to any future charges or detentions in which the factual or legal basis is substantially similar to that which the ECtHR has already addressed in its judgment; Halt all criminal proceedings initiated against Demirtaş following the constitutional amendment lifting his immunity, which was deemed unlawful by the ECtHR’s Grand Chamber; End the abuse of judicial proceedings to harass Demirtaş, stifle pluralism, and limit freedom of political debate, emphasizing that this cessation is essential to the restoration of Demirtaş’s rights; End interference in Demirtaş’s cases, especially by attempting to pressure or unduly influence judicial authorities; and Publicly correct false claims promoted by senior Turkish government officials that the Grand Chamber judgment in the Demirtaş case and European Court judgments more generally, are not binding.

urkey must take steps to ensure a fair trial by an impartial and independent tribunal respecting the procedural rights of Tahir Elçi’s family, as well as carry out a prompt, effective, impartial, and independent investigation into Mr. Elçi’s death. The Turkey Litigation Support Project (TLSP), together with 47 other lawyers’ and human rights organisations wrote a letter (available here) to the United Nations (UN) special mandate holders today on the killing of human rights lawyer Tahir Elçi on 28 November 2015 and the lack of effective investigation into his death. The letter has been addressed to the UN Special Rapporteur on the independence of judges and lawyers; Special Rapporteur on the situation of human rights defenders; Special Rapporteur on extrajudicial, summary or arbitrary executions; Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; Special Rapporteur on the promotion and protection of human rights while countering terrorism; and Special Rapporteur on minority issues. Providing a detailed analysis of the shortcomings of the investigation and prosecution into the incident and underlining Turkey's international human rights obligations, the organisations request the Special Rapporteurs’ urgent action ahead of the next hearing on 3 March 2021 in the criminal trial of those accused of killing Mr. Elçi and invite the mandate holders to call on the Turkish authorities to ensure; i. The case concerning Mr. Elçi’s killing is heard by an independent, impartial, and competent court that is capable of establishing the facts and truth around the killing; ii. All future hearings before the Diyarbakır 10th Heavy Penal Court comply with international standards regarding the right to a fair trial, in which the victims’ rights are also recognised; iii. The hostile attitude from the court towards the Elçi family and their lawyers and the court’s persistent refusal to follow the rules of procedure and principles of both domestic and international law are not repeated in future hearings; iv. The lawyers for the Elçi family are given reasonable opportunities to be heard and to make their applications in relation to the procedure and the evidence; v. Where submissions are refused, reasons for refusal are given in accordance with the case law of the ECtHR; vi. Following a fair judicial procedure, those who are responsible for Mr. Elçi’s killing are held accountable and serve sentences appropriate to the gravity of the crime committed; and vii. Mr. Elçi’s family is provided with appropriate redress for the violations they and their loved one have suffered in accordance with the international obligations of Turkey and the Minnesota Protocol. The letter was endorsed by the Turkey Human Rights Litigation Support Project, Amsterdam Bar Association, Article 19, Bar Human Rights Committee of England and Wales (BHRC), Cartoonists Rights Network International, Confederation of Lawyers of Asia and the Pacific (COLAP), Council of Bars and Law Societies in Europe (CCBE), Danish PEN, Denmark Defence Without Borders - Solidarity Lawyers (DSF-AS), Dutch League for Human Rights, European Association of Lawyers for Democracy and World Human Rights (ELDH), Fair Trial Watch, French National Bar Council (CNB), Gelderland Bar Association, Geneva Bar Association, Giuristi Democratici, Human Rights Commission of the European Bars Federation (FBE), Human Rights in Practice, International Association of Democratic Lawyers (IADL), Italian National Bar Council (CNF) , Lawyers for Lawyers, Lawyers' Rights Watch Canada, Lawyers without Borders, Limburg Bar Association, Lyon Bar Association, Midden-Nederland Bar Association, National Union of Peoples' Lawyers (NUPL) , Netherlands Helsinki Committee, Noord-Holland Bar Association, Noord-Nederland Bar Association, Oost-Brabant Bar Association, Overijssel Bar Association, Research Institute on Turkey, Rotterdam Bar Association, Rovereto Bar Association, Swiss Democratic Lawyers, The European Association of Lawyers (AEA-EAL) , The Foundation day of the Endangered Lawyer , The Hague Bar Association, The Institute for the Rule of Law of the International Association of Lawyers (UIA-IROL), The International Association of People's Lawyers (IAPL) , The International Observatory for Lawyers in Danger (OIAD), The International Observatory of Human Rights (IOHR), The joint Presidents of the Local Bar Associations of the Netherlands, The Law Society of England and Wales, The National Lawyers Guild (U.S.) International Committee, and Zeeland-West-Brabant Bar Association.

Council of Europe Body Should Trigger Infringement Proceedings Against Turkey (Istanbul, March 1, 2021) – The Turkish government’s failure to comply with a binding European Court of Human Rights order to release the human rights defender Osman Kavala should prompt Council of Europe action against Turkey, Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project said today. The three nongovernmental organizations presented the recommendation in a submission to the Committee of Ministers, the Council of Europe’s intergovernmental body responsible for overseeing the implementation of European Court of Human Rights judgments. The committee is to review Turkey’s noncompliance with the Strasbourg court’s judgment on Kavala’s case for the fourth time at its March 9-11, 2021 session. Kavala has been held in pretrial detention since November 2017. “Turkey’s flagrant disregard for the European Court of Human Rights order to release Osman Kavala should trigger the Council of Europe Committee of Ministers to start infringement proceedings against Turkey,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “It is crucial for the Committee of Ministers, at its March session, to leave the Turkish government in no doubt that European Court of Human Rights judgments are binding on Turkey and that persistent failure to implement the ruling in Osman Kavala’s case constitutes a serious breach requiring exceptional measures.” The Committee of Ministers may opt to take infringement proceedings against a Council of Europe member state that refuses to implement European Court of Human Rights judgments. It was used for the first time in 2017 when the government of Azerbaijan continuously refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov. Infringement proceedings are provided for under Article 46/4 of the European Convention on Human Rights (ECHR). Their commencement requires the vote of two-thirds of the Committee of Ministers. Once the process is triggered, the case is referred back to the European Court of Human Rights for a further opinion on the legally binding obligation to comply. If the Court confirms that Turkey has failed to implement the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey’s voting rights or membership of the Council of Europe. The Committee of Ministers has already considered the status of Turkey’s compliance with the judgment on multiple occasions, issuing two decisions and, in December 2020, an interim resolution that each strongly urged Turkey to comply with the court’s judgment by unconditionally releasing Kavala. However, since the December resolution, local courts in Turkey have prolonged Kavala’s detention four more times. A court of appeal has overturned his acquittal in the Gezi Park protests trial, and Turkey’s Constitutional Court has also flouted the European Court of Human Rights judgment by finding no violation of Kavala’s right to liberty. “The Kavala case is emblematic of the crisis facing civil society and the rule of law in Turkey,”. said Helen Duffy of the Turkey Human Rights Litigation Support Project. “We recognize that infringement proceedings are exceptional, but if there is a case where they are justified, it is this one. “Turning a deaf ear to the Strasbourg court’s clear order to release and the Committee of Minister’s repeated calls for compliance, Turkey’s government and courts have worked hand in glove to prolong and deepen the crisis and the violation of Mr. Kavala’s rights. Infringement proceedings against Turkey provide the strongest legal mechanism to signal the shame of not complying with European Court of Human Rights’ binding judgments.” The organizations said in their submission that, throughout the criminal proceedings against him, judges and prosecutors involved have abused criminal procedural rules to unlawfully extend Kavala’s detention based on allegations that he organized and financed the 2013 Istanbul Gezi Park protests and that he was involved in the July 15, 2016 attempted military coup. A key aspect of this effort has been the practice of different courts over the three years and four months of Kavala’setention successively joining, separating, and rejoining case files against Kavala to justify prolonging his incarceration. At the most recent local court hearing against Kavala, on February 5, 2021, the Istanbul 36th Assize Court ruled that the case against him concerning the coup attempt should be joined with the Gezi Park protests case, which is before the Istanbul 30th Assize Court. A hearing of the newly joined cases will take place on May 21. The organizations said in their submission that the decision to merge the proceedings against Kavala voids Turkey’s repeated argument before the Committee of Ministers that Kavala’s current detention is connected to a separate prosecution not covered by the Strasbourg court judgment. The groups also said that the Turkish government needs to address the structural problems raised in the Kavala judgment by revising its action plan to implement the ruling. “Separating cases or merging them again will not correct the injustice to which Turkey’s courts and government have subjected Osman Kavala for over three years,” said Róisín Pillay, Europe and Central Asia director of the International Commission of Jurists. “This case is part of a systemic practice in which the Turkish courts, which are not independent, apply criminal law and procedures arbitrarily against critics of the government. The action plan needs to address these structural failings in the judicial system.” The European Court of Human Rights judgment in Kavala v. Turkey is particularly significant because it is the first final ruling of the European Court of Human Rights against Turkey in which the court determined that, in interfering with an individual’s rights, the Turkish judicial authorities served ulterior political motivations, contrary to Article 18 of the ECHR. The court said that by holding Kavala in pretrial detention since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.” The court found violations of articles 18 and 5 of the ECHR.

TLSP joins 42 other organisations in a statement concerning the killing of human rights lawyer Tahir Elçi on 28 November 2015 and the lack of effective investigation into his death. Providing a detailed analysis of the shortcomings of the investigation and prosecution into the incident and underlining Turkey's international human rights obligations, the organisations call on the Turkish authorities to ensure that: 1. The case against 3 police officers is heard by an independent, impartial, and competent court that is capable of establishing the facts and truth around the killing of Tahir Elçi; 2. All future hearings comply with international standards regarding the right to a fair trial, in which the victims’ rights are also recognised; 3. The hostile attitude from the Diyarbakır 10th Heavy Penal Court towards the Elçi family and their lawyers and the court’s persistent refusal to follow the rules of procedure and principles of both domestic and international law are not repeated in future hearings; 4. The lawyers for the Elçi family are given reasonable opportunities to be heard and to make their applications in relation to the procedure and the evidence; 5. Where submissions are refused, reasons for refusal are given in accordance with the case law of the European Court of Human Rights; 6. Following a fair judicial procedure, those who are responsible for Mr. Elçi’s killing are held accountable and serve sentences appropriate to the gravity of the crime committed; and 7. Mr. Elçi’s family is provided with appropriate redress for the violations they and their loved one have suffered in accordance with the international obligations of Turkey and the Minnesota Protocol. The full statement is available in English here, and Turkish here. The statement has been signed by the following organisations: Amsterdam Bar Association (the Netherlands), Article 19, Article 21 (Italy), Bar Human Rights Committee of England and Wales (the United Kingdom), Cartoonists Rights Network International, Council of Bars and Law Societies in Europe (CCBE), Danish PEN, the European Association of Lawyers (AEA-EAL), European Association of Lawyers for Democracy and World Human Rights (ELDH), the European Bars Federation (FBE) and FBE Human Rights Commission, European Criminal Bar Association (ECBA), Fair Trial Watch (the Netherlands), Gelderland Bar Association (the Netherlands), Geneva Bar Association (Switzerland), German Bar Association (DAV) (Germany), Giuristi Democratici (Italy), the Group of International Legal Intervention (GIGI), the Hague Bar Association (the Netherlands), Human Rights in Practice (the Netherlands), the Institute for the Rule of Law of the International Association of Lawyers (UIA-IROL), the International Association of People's Lawyers (IAPL), the International Observatory of Human Rights (IOHR), Index on Censorship, International Association of Democratic Lawyers (IADL), the joint Presidents of the Local Bar Associations of the Netherlands, the Law Society of England and Wales (the United Kingdom), Lawyers for Lawyers (the Netherlands), Lawyers’ Rights Watch Canada (Canada), Limburg Bar Association (the Netherlands), Midden-Nederland Bar Association (the Netherlands), the National Association of Democratic Lawyers (South Africa), National Forensic Union M. G. A. (Italy), National Lawyers Guild International Committee (the United States of America), Netherlands Helsinki Committee (the Netherlands), Noord-Holland Bar Association (the Netherlands), Noord-Nederland Bar Association (the Netherlands), Oost-Brabant Bar Association (the Netherlands), Overijssel Bar Association (the Netherlands), Research Institute on Turkey (the United States of America), Rotterdam Bar Association (the Netherlands), Swiss Democratic Lawyers (Switzerland), Turkey Human Rights Litigation Support Project (the United Kingdom), and Zeeland-West-Brabant Bar Association (the Netherlands).

Council of Europe Ministers should take further steps at their 1390th 1-3 December 2020 meeting to end Mr. Kavala’s ongoing detention immediately. The Turkey Human Rights Litigation Support Project, Human Rights Watch, and the International Commission of Jurists have made a new Rule 9.2 submission on the European Court of Human Rights (ECtHR) judgment in Kavala v. Turkey to the Committee of Ministers of the Council of Europe. In Kavala v. Turkey, the ECtHR found, on 10 December 2019, violations of Article 5(1) (right to liberty and security), Article 5(4) (right to a speedy decision on the lawfulness of detention), and Article 18 (limitation on use of restrictions on rights) of the European Convention on Human Rights (the Convention) in conjunction with Article 5(1). In its judgment, which became final on 11 May 2020, the Court requested the Government of Turkey to take measures to end the detention of human rights defender Osman Kavala, the applicant, and to secure his immediate release. The Committee of Ministers, which monitors implementation of judgments of the ECtHR, reviewed Turkey’s compliance with the Court’s ruling at its 1377bis meeting of 1-3 September 2020 and 1383rd meeting of 29 September – 1 October 2020. The Committee considered that, based on the information available before it, there was a strong presumption that Osman Kavala’s ongoing detention was a continuation of the violations found by the ECtHR. The Committee of Ministers went on to urge the Turkish authorities to ensure Osman Kavala’s immediate release and an urgent conclusion of Mr. Kavala’s application pending before the Constitutional Court in line with the ECtHR’s findings, as well as the criminal proceedings concerning the Gezi Park and 15 July 2016 coup attempt. Despite the ECtHR’s clear ruling and the Committee of Minister’s decisions, Mr. Kavala remains in detention. The submission builds on an initial submission dated 29 May 2020 from the same group of NGOs (available here) and provides a detailed analysis of the 28 September 2020 indictment drafted by the Istanbul Public Prosecutor against Osman Kavala. It underlines several developments in relation to the issue of the ongoing interference with the judiciary by the executive in Turkey, including the promotion of the Prosecutor, who drafted the indictment, to Deputy Justice Minister by the President who has been personally targeting Mr. Kavala. According to the NGOs, Mr. Kavala’s ongoing detention and the new indictment against him demonstrate that he still continues to be the subject of a campaign of persecution and all these actions targeting his legitimate human right activities as a human rights defender and civil society activist are intended to reduce him to silence and deter others from carrying out similar activities as addressed already in the ECtHR judgment. The NGOs conclude their submission by formulating several recommendations to the Committee of Ministers and urging the Committee, among others, to take further steps to end Mr. Kavala’s ongoing detention immediately, which has now exceeded three years, and to recognise at its upcoming meeting of 1390th 1-3 December 2020 that the continuing detention of Osman Kavala violates Article 46 of the Convention concerning the binding nature of final judgments of the ECtHR and may trigger Article 46(4) infringement proceedings against Turkey.

The new bill of indictment issued by the Istanbul Chief Public Prosecutor's Office against Osman Kavala, a defender of human rights and peace, was accepted by the Istanbul 36th High Criminal Court on 8 October 2020, and the court ruled that Kavala’s pre-trial detention shall continue. Thus, a new phase of Osman Kavala’s unjust and unlawful detention has commenced. Osman Kavala was previously tried on the charge of financing the Gezi Park protests in an “attempt to overthrow the government” with the indictment accepted by the Istanbul 30th Heavy Penal Court and was acquitted on 18 February 2020. He has been detained in prison for nearly three years despite the judgment of the European Court of Human Rights (ECtHR) ordering his immediate release. This new bill of indictment demands his trial on the charge of “obtaining government information that must be kept confidential, with the purpose of spying on political and military affairs,” as well as the charge of “attempting to overthrow the government” in relation to 15 July 2016 coup attempt on which two orders of release were previously issued. There is no doubt that these allegations against Osman Kavala will be proven to be baseless, just like the previous ones. It is because this bill of indictment, which is even beyond being “unlawful,” constitutes the denial of law. These allegations themselves defy domestic law and universal legal values. The court seems to have violated all the basic principles of law by accepting this bill of indictment, which contains no concrete evidence, is based on assumptions made with political prejudices, and makes hypothetical inferences by mentioning disconnected events one after another. This bill of indictment proves once again that the reason behind detention of Osman Kavala is not a necessity of law enforcement, but a political decision. While all the actions listed in the bill of indictment constitute the exercise of legal and legitimate human rights activities of civil society activists and NGOs, Osman Kavala has been detained in an unlawful, unreasonable, illogical, and unconscionable manner by considering these actions an offense. The bill of indictment does not in any way refer to Osman Kavala’s acquittal in the Gezi Park case or the binding judgment of the ECtHR, which found violation of his rights and freedoms, and disregards the facts and evidence in favor of Osman Kavala by ignoring the basic ethical rules of the profession of prosecution. On the contrary, it attempts to intervene in the judicial process carried out before another judicial authority regarding the Gezi Park events, and the prosecution covers this issue in detail in the bill of indictment, even though it has no duty or authority. It is unacceptable that Osman Kavala’s detention and severe unjust treatment continues with new judicial processes and new bills of indictment issued with the thought of “let’s take our chance,” despite the judgment of the ECtHR, which ruled that the detention on the Gezi protests and the coup attempt related allegations is unlawful; the call of Committee of Ministers of the Council of Europe for the immediate termination of his ongoing detention; and the acquittal decisions and orders of release issued in his favor. As human rights defenders, we repeat: “You cannot make Osman Kavala look guilty.” There is no evidence that will justify the investigation against Osman Kavala, let alone deprivation of his liberty for 1079 days. Turkey must act to fulfill its obligation to enforce the ECtHR’s judgment and, heeding the call of the Committee of Ministers of the Council of Europe, release Osman Kavala immediately, and drop all baseless, unlawful, and unjust charges against him. Solidarity Network for Human Rights Defenders Amnesty International, Citizens’ Assembly Turkey, Association for Monitoring Equal Rights, Association of Lawyers for Freedom, Civic Space Studies Association, Civil Rights Defenders, Human Rights Agenda Association, Human Rights Association Istanbul Branch, Human Rights Foundation of Turkey, Kırkayak Culture, Life Memory Freedom Association, Media and Law Studies Association, Punto24 Association for Independent Journalism, Research Institute on Turkey, The Rights Initiative Association, Truth Justice Memory Center, Turkey Human Rights Litigation Support Project, Turkish-German Forum of Culture Solidarity Network for Human Rights Defenders – Turkey is a network of human rights organisations which insists that defending human rights is a universal right. The Network is committed to strengthen solidarity and communication among its members and to challenge all forms of repression and harassment against human rights defenders.

The Turkey Litigation Support Project (TLSP) and several other member organisations of Solidarity Network for Human Rights Defenders wrote a letter to the United Nations (UN) special mandate holders on 10 August 2020, underlining the recent increase in attacks on LGBTI+ people in Turkey. The letter demands an urgent intervention from the UN authorities. The letter has been addressed to the UN Independent Expert on Sexual Orientation and Gender Identity, Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association, Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and the Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism. The letter listed the attacks on LGBTI+ people in the aftermath of July 15, 2016 coup attempt under the increasingly diminishing rule of law and protection of human rights in Turkey. Within this context, the letter cited the bans imposed on the LGBTI+ events, some of which are still ongoing. It also stressed the legal harassment, physical attacks as well as the systematic discrimination and hate speech targeting LGBTI+ persons and rights defenders. The letter reminded the UN special mandate holders of the recent statements made by the head of Directorate for Religious Affairs, Ali Erbaş, on April 24, 2020 targeting LGBTI+ people and the developments seen following the reaction shown by several bar associations against the statement. The letter underlined the serious increase in the hate speech against LGBTI+ persons in Turkey following Erbaş’s remarks and the failure of the judiciary to properly prosecute those who commit crime in their remarks against LGBTI+ people. Accordingly, this year on Pride Week many high ranking state officials, politicians and pro-government media outlets used hate speech and these contradict the domestic law as well as the international legal obligations of Turkey. The letter stressed the fact that the Turkish Constitution guarantees the right to freedom of expression and of association under Articles 26 and 34; that Article 10 of the Constitution states that “Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds. “ Furthermore, according to the letter, Article 90 of the Constitution states that “In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” The letter highlighted that although the concept of “discrimination based on sexual orientation and gender identity” is not included in the Constitution or other relevant laws , hate speech and discrimination is against the law based on the abovementioned Constitutional principles, international legal obligations of Turkey as well as Article 3 of the Turkish Penal Code on equality before the law, Article 122 which defines discrimination and hate speech as criminal act and, lastly, Article 216 penalising public incitement to hatred and hostility against a section of the public against another section which has a different characteristic. The letter stated that the prohibition of discrimination is a customary rule of international law. Therefore, under any conditions, including that of state of a emergency, can this ban be circumvented by exceptions and Turkey, accordingly, cannot derogate from its international law obligations concerning prohibition of discrimination . The letter further explained that Turkey’s restrictive policies towards the LGBTI+ community and the problematic language recently adopted by the high ranking government and state officials constituting hate speech can lead to grave consequences in the near future as it legitimizes, in the eyes of the government supporters, violence. The human rights organizations which signed the letter invited the UN special mechanisms to, among others, invite the Turkish authorities to seize the discriminatory hate speech against LGBTI+ people by the state officials, to ensure the Turkish government complies with its domestic and international law obligations and to urge Turkey to take necessary steps to protect the LGBTI+ community from any attacks. The letter was signed by Turkey Human Rights Litigation Support Project, Civil Rights Defenders, Association for Monitoring Equal Rights (AMER), Truth, Justice and Memory Center, Kaos GL, London Legal Group, Media and Law Studies Association, Association of Lawyers for Freedom, Platform for Independent Journalism (P24), Research Institute on Turkey, Social Policy Gender Identity and Sexual Orientation Studies Association (SPoD), Human Rights Foundation of Turkey, Life Memory Freedom Association, and Citizens’ Assembly. Contact: Ayşe Bingöl Demir, Co-Director, info@turkeylitigationsupport.com, Twitter: @TR_Litigation

Turkish authorities should immediately release human rights defender Osman Kavala, in compliance with the Council of Europe Committee of Ministers’ decision of 3 September 2020, the International Commission of Jurists (ICJ), Human Rights Watch and the Turkey Human Rights Litigation Support Project said today. The decision followed a Committee of Ministers hearing to assess the execution of the judgment of the European Court of Human Rights in the case of Osman Kavala. The Committee, acting in its supervisory capacity for Court judgments, ordered the Turkish authorities, “to ensure the applicant’s immediate release,” pointing to, “a strong presumption that his current detention is a continuation of the violations found by the Court.” “After the finding by the European Court of Human Rights that Kavala’s detention is unlawful, the Committee of Ministers has affirmed that Turkey is continuing to violate his rights by keeping him in detention” said Roisin Pillay, director of the Europe and Central Asia Programme at the International Commission of Jurists. “European Court rulings are binding, and Osman Kavala should be released immediately.” Despite the unlawful detention and an acquittal by the Turkish criminal court presiding over his trial, Osman Kavala has been kept behind bars under a newly issued charge of “espionage” since March 2020. His lawyers are currently challenging the lawfulness of the detention before Turkey’s Constitutional Court. However, the Committee of Ministers indicated in its decision that Turkey should not wait for a ruling of the Constitutional Court but should release Kavala immediately. In June, the ICJ, Human Rights Watch and the Turkey Human Rights Litigation Support Project made a detailed submission to the Committee of Ministers of the Council of Europe, which oversees enforcement of European Court of Human Rights judgments. The submission argued that the sequence of events and repeated local court decisions to ensure Kavala’s detention subsequent to the European Court’s ruling in December 2019 demonstrated that Turkey was prolonging the violations found by the European Court. The European Court judgment in Kavala v. Turkey (Application no. 28749/18) found violations of the following provisions of the European Convention on Human Rights: Article 5(1) (right to liberty and security), Article 5(4) (right to a speedy decision on the lawfulness of detention), and the rarely used Article 18 (limitation on use of restrictions on rights) taken together with Article 5(1). The Court required Turkey to release Kavala and said that any continuation of his detention would prolong the violations and breach the obligation to abide by the judgment in accordance with Article 46(1) of the Convention. The judgment on Osman Kavala’s case is particularly significant because it is the first final ruling of the European Court of Human Rights against Turkey in which the Court determined that, in interfering with an individual’s rights, Turkey acted in bad faith and out of political motivations, violating Article 18 of the European Convention on Human Rights. The Court said that by detaining Kavala since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.” Kavala has been held in detention since November 2017, initially on bogus allegations that he used the 2013 Istanbul Gezi Park protests as a pretext for an attempt to overthrow the government, and that he was involved in the July 15, 2016 attempted military coup. On February 18, 2020, Kavala and his eight co-defendants were acquitted on charges of “attempting to overthrow the government by force and violence” in the Gezi Park trial. But Kavala was not released, and a court ordered his detention again immediately on one of the grounds for his initial detention on 1 November 2017, namely the charge of “attempting to overthrow the Constitution by force and violence” because of the ongoing July 15, 2016 coup attempt-related investigation against him. Turkey’s President Recep Tayyip Erdoğan had publicly criticized his acquittal just before he was detained again. Weeks later a court ordered his detention a second time on another charge (“espionage”) but under the same investigation file on the coup attempt and relying on the same evidence. “The decision by the Council of Europe Committee of Ministers confirms our submission that political considerations are behind the court orders prolonging Osman Kavala’s detention , and that there has been a concerted official effort to prevent Kavala’s release,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch. “Instead of complying with the European Court’s judgment, Turkey has continued to violate Kavala’s human rights.” The targeted harassment in Turkey of rights defenders is part of a wider practice of arbitrary detentions and abusive prosecutions of journalists, elected politicians, lawyers, and other perceived government critics. This practice has been well-documented in many reports by the Council of Europe, the European Union, and human rights organizations. “The campaign of persecution against Osman Kavala and the failure to release him and drop all charges have perpetuated a chilling environment for all human rights defenders in Turkey,” said Ayşe Bingöl Demir, co-director of the Turkey Human Rights Litigation Support Project. “Ending this blatantly unlawful detention, which has been ongoing for over 1000 days, will not only play a role in preventing further violations to Osman Kavala’s rights, it will also give a strong signal to the human rights defenders community that the oversight mechanisms in place to ensure Turkey’s compliance with its international human rights obligations can still be effective.” Contact: Ayşe Bingöl Demir, Co-Director, info@turkeylitigationsupport.com, Twitter: @TR_Litigation

The Turkey Litigation Support Project (TLSP), together with 17 prominent lawyers' and human rights organisations, sent an urgent action letter (available here) to the UN Special Rapporteurs expressing serious concerns regarding arbitrary detention and long-term imprisonment of lawyers Ebru Timtik and Aytaç Ünsal in violation of fair trial principles and their right to freedom of expression. When the letter was sent on 18 August 2020, Timtik and Ünsal were on hunger strike since 2 February 2020 in demand for a fair trial. The TLSP, together with a group of lawyers’ rights organisations, previously submitted another urgent action letter on 20 May 2019, which described further instances of what seems to be a systematic practice of persecuting lawyers in order to silence and intimidate human rights defenders and those critical of the Turkish government. The urgent action letter requests the Special Rapporteurs to urge the Turkish authorities to; * give Ebru Timtik and Aytaç Ünsal the opportunity to await the outcome of their appeal in freedom and facilitate their immediate release as currently their lives are further endangered in light of the hospital and prison conditions in Turkey during the COVID-19 global pandemic. * drop all criminal charges against Ebru Timtik and Aytaç Ünsal, 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. * respect and ensure the independence of the judiciary by law and practice and to prevent judges, prosecutors and lawyers from suffering undue interferences. * comply with the provisions of the ICCPR, the UN Basic Principles on the Role of Lawyers, the UN Declaration on Human Rights Defenders and other international instruments on the protection and promotion of fundamental rights and freedoms. The letter is endorsed by Lawyers’ Rights Watch Canada (Canada), Consiglio Nazionale Forense (CNF) (Italy), Lawyers for Lawyers (Netherlands), Defense Sans Frontiere-Avocats Solidaire ( DSF-AS) (France), İstanbul Bar Association (Turkey), Swiss Democratic Lawyers (Switzerland), Rotterdam Bar Association (Netherlands), the Council of Bars and Law Societies of Europe (CCBE) (Brussels), Republikanischer Anwältinnen- und Anwälteverein e. V., Berlin (Germany), Avocat.e.s Européennes Démocrates / European Democratic Lawyers (AED/EDL), Ordre des Avocats de Genève / Geneva Bar Association (Switzerland), London Legal Group (United Kingdom), Lyon Bar Association (France), Ravenna Bar Association (Italy), Çağdaş Hukukçular Derneği / Progressive Lawyers Association (ÇHD) (Turkey), European Association of Lawyers for Democracy and World Human Rights (ELDH) (Germany), and the Law Society of England and Wales (United Kingdom).

Council of Europe Ministers Should Urge Osman Kavala’s Release (Strasbourg, June 3, 2020) – The Council of Europe Committee of Ministers should issue a decision at its June 4, 2020 meeting directing Turkey to release human rights defender Osman Kavala and drop all charges against him, Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project said today. The three groups have submitted a detailed submission (available here) to the Council of Europe’s Committee of Ministers, which oversees enforcement of European Court of Human Rights judgments. The groups outlined how Turkey continues to violate Kavala’s rights by flouting a landmark judgment, that became final on May 11 requiring his immediate release. “The European Court ruled that Kavala’s detention is unlawful, and their binding judgment requires Turkey to release him immediately,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch. “The Committee of Ministers, at its June 4 meeting, should press Turkey to comply and issue a clear message that no Council of Europe member state should be silencing human rights defenders.” The judgment is particularly significant because it is the first final ruling against Turkey in which the court determined that in interfering with an individual’s rights Turkey acted in bad faith and out of political motivations, violating Art. 18 of the European Convention on Human Rights. The court said that by detaining Kavala since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.” The European Court judgment in Kavala v. Turkey (Application no. 28749/18) found violations of Art. 5(1) (right to liberty and security), Art. 5(4) (right to a speedy decision on the lawfulness of detention), and the rarely used Art. 18 (limitation on use of restrictions on rights), taken together with Art. 5(1). It required Turkey to release Kavala and said that any continuation of his detention would prolong the violations and breach the obligation to abide by the judgment in accordance with Art. 46(1) of the European Convention on Human Rights. A court ordered Kavala’s detention on November 1, 2017 on bogus allegations that he used the 2013 Istanbul Gezi Park protests as a pretext for an attempted coup, and that he was involved in the July 15, 2016 attempted military coup. On February 18, 2020, Kavala and his eight co-defendants were acquitted on charges of “attempting to overthrow the government by force and violence” in the Gezi Park trial. But Kavala was not released, and a court detained him again immediately on the charge of “attempting to overthrow the constitution by force and violence” because of an ongoing 2016 coup-related investigation against him. Turkey’s President Recep Tayyip Erdoğan had publicly criticized his acquittal just before he was detained again. Weeks later a court ordered his detention a second time on another charge (“espionage”) but relying on the same evidence and investigation file. “The sequence of court orders prolonging his detention and the lack of objective deliberation as to the lawfulness of any deprivation of liberty indicates that decisions have been guided by political considerations and there has been a concerted official effort to prevent Kavala’s release,” said Róisín Pillay, director of the Europe and Central Asia Programme of the International Commission of Jurists. “Since the European Court’s judgment, Turkey has continued to violate Kavala’s human rights.” The targeted harassment in Turkey of rights defenders is part of a wider trend of arbitrary detentions and abusive prosecutions of journalists, elected politicians, lawyers, and other perceived government critics. This trend has been well documented in many reports by the Council of Europe, the European Union, and human rights organizations. “The campaign of persecution against Osman Kavala and the failure to release him and drop all charges have perpetuated a chilling environment for all human rights defenders in Turkey,” said Ayşe Bingöl Demir, co-director of the Turkey Human Rights Litigation Support Project. The three organizations made detailed recommendations to the Committee of Ministers, urging it to: Call on the government of Turkey to ensure the immediate release of Osman Kavala as required by the European Court’s judgment, stressing that the judgment clearly applies to his ongoing detention and persecution; Place the Kavala v. Turkey judgment under “enhanced procedures” and treat it as a leading case under Art. 18 of the European Convention; Recognize that Kavala’s continuing detention violates Art. 46 of the Convention, concerning the binding nature of final judgments of the European Court, and that a failure to release Kavala may trigger an Art. 46(4) procedure (infringement proceedings); Emphasize to the Government of Turkey that Kavala’s release is of added urgency in the context of the Covid-19 pandemic, which increases the risk to his health in detention; and Ask the Government of Turkey to drop all charges under which Kavala has been investigated and detained to silence him, in conformity with the Court’s findings that his rights have been violated and that his exercise of rights to freedom of expression, assembly, and association was wrongfully used as evidence to incriminate him. The groups also identified the general measures that Turkey needs to take to carry out the judgment to end politically motivated detention and prosecution of human rights defenders and other perceived government critics. These measures focus on Turkey’s structural rule of law problems. They include executive control over Turkey’s judiciary and prosecutorial authorities, and the evidence of a clear pattern of direct political interference in court decisions through frequent public speeches by Turkey’s president and proxies. A pattern of criminalizing the exercise of Convention-protected rights defines many of the cases against human rights defenders and other perceived government critics. For more Turkey Human Rights Litigation Support work on Turkey, please visit: https://www.turkeylitigationsupport.com/ For more information, please contact: Ayşe Bingöl Demir (Turkish, English): info@turkeylitigationsupport.com. Twitter @TR_Litigation

TLSP joins rights groups in calling for Turkey to release all those arbitrarily detained, now at risk of Covid-19. In the early hours of Tuesday 14 April, the Turkish Parliament passed a law which will lead to the release of up to 90,000 prisoners. However, it excludes scores of journalists, human rights defenders, politicians, lawyers and others arbitrarily detained pending trial or serving sentences following unfair trials under Turkey’s overly broad anti-terrorism laws which facilitate incarceration for exercise of free speech. While we welcome any measures taken to alleviate overcrowding in Turkey’s prisons, the new measures unjustifiably exclude tens of thousands who are imprisoned for the peaceful exercise of their rights.

On 20 April 2020, Research Institute on Turkey (RIT), Turkey Human Rights Litigation Support Project (TLSP) and Osman Kavala Solidarity Team organized an international panel focusing on a compilation, a book previously produced by 300 friends, organizations and initiatives for Osman Kavala’s 62nd birthday. The panel covered the solidarity campaign #FreeOsmanKavala and the story behind the production of the book, the state of his trial, how it affects civil society in Turkey as well as concerns amid COVID-19 as he is within this higher risk age group and certain basic rights such as the right to nutrition and the right to health are not precisely looked after. The panel was hosted via Zoom with the participation of more than 150 attendees from 76 global human rights organizations, institutes, NGOs, cultural organizations and universities.

TLSP joins 26 other organisations in calling for the urgent release of imprisoned journalists, human rights defenders and others, now at risk of Covid-19. Amid growing concerns over the spread of Covid-19 in prisons, the Turkish government is accelerating the preparation of a draft law that will reportedly release up to 100,000 prisoners. This is a welcome step. Overcrowding and unsanitary facilities already pose a serious health threat to Turkey’s prison population of nearly 300,000 prisoners and about tens of thousands of prison staff. That will only be exacerbated by the coronavirus pandemic. However, we remain concerned that journalists, human rights defenders and others imprisoned for simply exercising their rights, and others who should be released, will remain behind bars in the package of measures as currently conceived by the government. The statement calls on the Turkish authorities to: Immediately and unconditionally release journalists, human rights defenders and others who have been charged or convicted simply for exercising their rights Re-examine the cases of all prisoners in pre-trial detention with a view to releasing them Seriously consider releasing prisoners who are particularly vulnerable to Covid-19, such as older prisoners and those with serious medical conditions. Ensure that all prisoners have prompt access to medical attention and health care to the same standards that are available in the community, including when it comes to testing, prevention and treatment of COVID-19. Prison staff and health care workers should have access to adequate information, equipment, training and support to protect themselves.

ARTICLE 19 and the Turkey Human Rights Litigation Support Project (TLSP) have warned that the rights to freedom of expression and assembly continue to be at risk in Turkey. Their warning comes ahead of the Council of Europe’s Committee of Ministers’ review of Turkey’s implementation of judgments by the European Court of Human Rights, which will take place between 3-5 March 2020. David Diaz-Jogeix, Senior Director of Programmes at ARTICLE 19 said: “The Turkish authorities continue to use anti-terror laws to harass journalists, human rights defenders, opposition politicians, academics, lawyers and others. It is shocking that this still happens, despite several European Court judgments that specifically addressed how these laws were being used to violate freedom of expression and stifle dissent. In fact, since these rulings, the number of cases has reached an alarming level, as has the severity of sanctions imposed on defendants.” Ayse Bingol Demir, co-director of TLSP, said: “Remedies for human rights violations are still not easily accessible in Turkey and the Constitutional Court’s effectiveness is hindered by slow and inconsistent decision-making. Moreover, in some key cases where the Constitutional Court did make decisions, their implementation has been problematic. “Freedom of expression in Turkey will remain under threat until there is a genuine political will to undertake comprehensive legal reform, effectively guarantee the re-establishment of an independent judiciary and ensure implementation of the Constitutional Court and European Court rulings in the country.” The Committee of Ministers of the Council of Europe is responsible for supervising the implementation of judgments by the European Court of Human Rights. ARTICLE 19 and TLSP have submitted two communications to the Committee on Turkey’s lack of implementation of the Işıkırık group and the Öner and Türk group of judgments. The European Court noted in these judgments that the Turkish authorities were using certain articles of the Prevention of Terrorism Act (the Law no. 3713) and the Criminal Code to stifle freedom of expression and peaceful assembly. The Turkish authorities have requested from the Committee of Ministers that the cases be closed, claiming that the judgments have been fully implemented. ARTICLE 19 and TLSP urge the Committee of Ministers to keep the cases open and continue supervising their implementation because of widespread violations of the right to freedom of expression and assembly that continue to take place in Turkey contrary to what the Turkish authorities’ have claimed. Ongoing abuse of anti-terror laws against journalists and human rights defenders The submissions demonstrate that the Turkish authorities’ violations of the right to free expression and assembly have continued. The large numbers of prosecutions show the widespread use of the anti-terror laws to harass those critical of the Government, including journalists, human rights defenders and others. This is deterring others from voicing their thoughts freely. In a number of cases since the Öner and Türk ruling of March 2015, the Turkish courts are still systematically failing to examine “the proportionality of the interference and the balancing of rights taking into account freedom of expression”, as noted by the Court in Öner and Türk. For example, the large number of prosecutions suggests that Articles 6 and 7(2) of the Prevention of Terrorism Act are used to systematically harass journalists and others on the basis of their expression. In fact, between 2013 and 2018, almost 100,000 cases have been opened under the Prevention of Terrorism Act. The number of prosecutions has starkly increased between 2013-2018, despite the Turkish Government’s claims in its action plan submitted to the Committee of Ministers that the number of such cases had decreased during this time. Since 2013, when there were more than 10,000 cases, the number of prosecutions has increased each year, apart from 2015 and 2018. Turkey’s 2020 Action Plans fail to address ongoing human rights violations In its January 2020 Action Plans submitted to the Committee of Ministers ahead of the meetings of 3-5 March 2020, Turkey claims that it has implemented the judgments and points to the Judicial Reform Strategy and the training of judges to support their claim. However, in ARTICLE 19 and TLSP’s view, Turkey’s Judicial Review Strategy does not introduce any substantial reforms and fails to address the core issues at stake regarding the independence of the judiciary. Furthermore, in light of the worsening practice of the judiciary, any training that has taken place has manifestly failed to have an impact on the ground. Similarly, the Turkish Government’s Action Plans of 2020 fail to specify adequate general measures to implement the European Court’s judgments in the Işıkırık group and Öner and Türk group of cases. There are no planned significant legislative changes in the 2020 action plans for both groups, and the steps that they have claimed to have taken, including some amendments to the laws, are inadequate. In its 2020 Action Plan on the Öner and Türk cases, Turkey claims that the amendment made in the Prevention of Terrorism Act were steps taken to implement the judgments. However, ARTICLE 19 and TLSP believe that the amendments have failed to prevent the widespread misuse of the Prevention of Terrorism Act. Given the large numbers of journalists, human rights defenders, academics, politicians, lawyers and others prosecuted on the basis of this law and its severe effect on the rights and freedoms in general, we believe the problematic provisions addressed in the judgments should be repealed entirely. Similarly, despite the European Court’s findings in the Işıkırık group of cases that Article 220(6) of the Criminal Code is too broad, prescribes disproportionate sanctions, criminalises lawful conduct, and has a chilling effect on the exercise of the right to freedom of expression and assembly, the Turkish authorities have continued to apply this law against individuals on the basis of their expression. Recommendations As set out in our submissions, in its debate on these vital issues in Turkey we urge the Committee of Ministers to call on Turkey to: Ensure the implementation of the Constitutional Court and the European Court of Human Rights rulings, including by refraining from intemperate criticism of court decisions that undermine the rule of law. Repeal Article 220(6) and (7) of the Criminal Code in line with the Venice Commission’s recommendations. Amend Article 314 of the Criminal Code to ensure stricter and clearer criteria for membership of a terrorist organisation and ensure strict application of the criteria within the courts. Abolish Article 7(2) and Article 6 (2) and (4) of the Prevention of Terrorism Act. Amend the definition of terrorism under Article 1 of the Prevention of Terrorism Act to bring it in line with international standards on human rights and counter-terrorism. Amend Article 2 of the Prevention of Terrorism Act to ensure that those who are not members of an illegal terrorist organisation and have not committed a serious crime cannot be convicted as such. Take concrete steps to restore the independence of the judiciary, including by reforming the method of appointment of the Council of Judges and Prosecutors. Re-establish the independence of the judiciary, through implementing the recommendations of the Venice Commission regarding the 2017 amendments to the Turkish Constitution. Background to the cases These cases form part of a pattern of human rights violations which has increased in spread and intensity following the declaration of the state of emergency after the July 2016 coup attempt. The leading judgment in the Işıkırık group of cases, Işıkırık v Turkey, demonstrates how Turkey violated the right to freedom of assembly by convicting Mr Murat Işıkırık of membership of an illegal organisation, solely based on his participation in a peaceful funeral procession for members of the PKK (Kurdistan Workers’ Party) in July 2009. The European Court found that the sanction was disproportionate and that there was no distinction under the Criminal Code between a peaceful demonstrator and a member of an armed terrorist organisation. The Öner and Türk group covers 32 cases of people who were convicted under the Criminal Code or the Prevention of Terrorism Act for inciting violence or hatred. The European Court found that this was in violation of the applicants’ right to freedom of expression as they did not incite violence or hatred. The Committee of Ministers will meet between 3-5 March 2020 to review implementation of the judgments in these cases and decide whether to keep the cases as pending implementation subject to the Committee’s supervision or close them. For more information, contact: Turkey Human Rights Litigation Support Project team – info@turkeylitigationsupport.com.

On 10 December 2019, the European Court of Human Rights (ECtHR) marked Human Rights Day by issuing a judgment of great potential significance in the case of Osman Kavala, a prominent human rights activist who has been detained for his alleged role in the 2013 Gezi Park Protests and the July 2016 coup attempt. In Kavala v Turkey, the Court found violations of Article 5(1) of the European Convention on Human Rights (Convention) on the lack of reasonable suspicion that the applicant had committed an offence; Article 5(4) of the Convention on the lack of a speedy judicial review on arbitrary detention; and Article 18 of the Convention, on the prohibition of restrictions of rights for unauthorised purposes, in conjunction with Article 5(1). Both the timing and the content of the judgment are significant. Delivered in the weeks before the Turkish court is due to hear Mr Kavala’s criminal case, on 24-25 December 2019, the decision sends a very strong message to the Turkish judiciary. Moreover, the case is emblematic of broader current trends in Turkey and has raised human rights issues of significance to hundreds of other cases underway before the Turkish courts. As a joint third-party intervention before the ECtHR, submitted by the TLSP and PEN International, made clear, these issues include the human rights implications of closing civil society space in Turkey and the repression of human rights defenders including through excessive resort to criminal law. The applicant Osman Kavala was arrested in Istanbul in October 2017 on the alleged suspicion of attempting to abolish constitutional order (Article 309 of the Criminal Code) and overthrow the government (Article 312 of the Criminal Code). The charges relate to his alleged involvement in the 2013 Gezi Park Protests. The protests, which began as a challenge to government plans to destroy Gezi Park in İstanbul and create a shopping centre later triggered a wave of demonstrations against restrictive government policies across Turkey, and were characterised by the prosecutor as a “riot to overthrow the government” and “supported by many terrorists.” On 1 November 2017, Mr Kavala was brought before the 1st Magistrate’s Court (Criminal Peace Judgeship) in Istanbul, where he denied the charges and highlighted that he had been campaigning for peace and for the defence of human rights. At the end of this hearing, Mr Kavala was placed in detention on the grounds that there was evidence to suggest he had organised the Gezi Park Protests and had contacts with the alleged organizers of the July 2016 coup attempt. On 29 December 2017, Mr Kavala lodged an individual application with the Constitutional Court claiming violation of, inter alia, Article 19 of the Constitution, corresponding to the rights guaranteed under the Convention. In a controversial majority decision, discussed in detail by TLSP here, the Constitutional Court endorsed the prosecutor’s perception that the Gezi Park Protests had been violent and aimed at overthrowing the government, and that the applicant had taken part in and financed activities and meetings contributing to this aim. Five dissenting judges challenged the majority on the grounds that there was in fact no evidence substantiating links between the applicant’s conduct and the violent incidents highlighted by the authorities. The majority however decided that the applicant’s pre-trial detention was lawful based on a reasonable suspicion and was proportionate given the difficulties in investigating terrorism related offences. In his case before the ECtHR, Mr Kavala relied on Articles 5(1)(c) and 5(3) of the Convention to challenge the lawfulness of his initial and continued pre-trial detention. He argued that the lack of evidence of any plausible grounds for suspecting him of criminal activity rendered the detention unlawful. The ECtHR agreed, finding “in the absence of facts information or evidence showing he had been involved in criminal activity – that the applicant could not be reasonably suspected of having committed the offence of attempting to overthrow the Government.” The Court reached the same conclusion in relation to Mr Kavala’s alleged involvement in the attempted coup (para 153). The Court’s willingness to consider the facts and evidence and find that it provided no reasonable basis for suspicion, or detention, was significant. But in a passage that provokes particular interest in light of Mr Kavala’s impending trial, the ECtHR went further, making clear that the impugned conduct could not reasonably be seen to constitute a crime at all, but rather legitimate human rights related activity. It noted that the applicant’s continued pre-trial detention was “based not only on facts that cannot be reasonably considered as behaviour criminalised under domestic law, but also on facts which were largely related to the exercise of Convention rights. The very fact that such acts were included in the bill of indictment as the constituent elements of an offence in itself diminishes the reasonableness of the suspicions in question” (para 157). The Court found a lack of speedy judicial review governing detention under Article 5(4) of the Convention. Mr Kavala argued that several factors (including lack of access to the case file and non-compliance with the principles of equality of arms amongst others) had prevented him from being able to effectively challenge his detention, and that the proceedings before the Constitutional Court did not respect the requirement of speedy judicial review. Again, the ECtHR agreed, finding that given what was at stake for the applicant, the total duration of over 16 months of the Constitutional Court’s review could not be considered compatible with the “speediness” requirement of Article 5(4) (para 185). Of special note, with important implications for future cases, is the Court’s observation that “the excessive workload of the Constitutional Court cannot be used as perpetual justification for excessively long procedures […] It is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 5(4) of the Convention” (para 188). Lastly, the applicant submitted that his detention was in breach of Article 18 of the Convention as it was imposed for a purpose other than that envisaged by Article 5, namely to silence him as an NGO activist and human rights defender, to dissuade others from engaging in such activities and to paralyse civil society in the country. Reflecting our third-party intervention, the Court found that following the attempted coup, the government had misused “legitimate concerns in order to redouble its already significant crackdown on human rights, inter alia, by placing dissenters in pre-trial detention.” (para 214). In a significant finding, the second such finding against Turkey following its previous judgment in Selahattin Demirtaş v Turkey (No. 2), the Court held that applicant’s initial and continued detention pursued an ulterior purpose, namely to reduce him to silence as a human rights defender. In support of its finding on Article 18, the ECtHR highlighted the fact that during police interviews, Mr Kavala was asked many questions which had no connection with the charges. This included questions about his meetings with representatives of foreign countries, his telephone conversations with academics, journalists, NGO representatives and the visit of an EU delegation – none of which appeared to be relevant to assessing the “reasonableness” of the suspicion underlying the charges. The Court noted that many of these are the “ordinary and legitimate activities on the part of a human rights defender and the leader of an NGO” (para 223). In an indictment of the Turkish prosecution, the judgment found that “the inclusion of these elements undermines the prosecution’s credibility. In addition, the prosecution’s attitude could be considered such as to confirm the applicant’s assertion that the measures taken against him pursued an ulterior purpose, namely to reduce him to silence as an NGO activist and human-rights defender, to dissuade other persons from engaging is such activities and to paralyse civil society in the country” (para 224). In addition, the Court found the time-frame of the case to be relevant to an assessment of Article 18 of the Convention, specifically the fact that the applicant was arrested more than four years after the Gezi Park Protests and more than a year after the attempted coup (para 226). Lastly, the Court noted that the charges were brought against the applicant in February 2019, over a year after his initial detention of November 2017, and following speeches given by the President of the Republic. The Court made references to two specific speeches the President gave in November and December 2018, in which he spoke about the financing of the Gezi Park events and openly cited the applicant’s name: “I have already disclosed the names of those behind Gezi. I said that its external pillar was G.S., and the national pillar was Kavala.” The Court held it could not overlook the fact that “when these two speeches were given, the applicant who had been held in pre-trial detention for more than a year, had still not been officially charged by the prosecutor’s office. In addition, it can only be noted that there is a correlation between, on the one hand, the accusations made openly against the applicant in these two public speeches and, on the other, the wording of the charges in the bill of indictment, filed about three months after the speeches in question” (para 229). Taking into account these elements, and the consideration that Mr Kavala’s detention was “part of a wider campaign of the repression of human rights defenders in Turkey,” which was endorsed by third-party interveners, the Court found a violation of Article 18 and noted its wider chilling effect on the rest of civil society (para 230). Based on its findings summarised above, the Court invited Turkey to take all necessary measures to end violations and secure Mr Kavala’s “immediate release.” The judgment of the ECtHR is significant in several respects. It is the first case the ECtHR has concluded in relation to the worrying trend of arbitrary use of criminal law against human rights defenders in the country following the coup attempt. The rare findings of Articles 5(1) and, particularly, Article 18 violations, and the strident criticism the Court directed to the investigating authorities and the executive, are noteworthy. It is also the first time that the ECtHR found that the Constitutional Court’s ability to provide a speedy remedy to those challenging their pre-trial detentions, in this case, fell short of the Convention standards, which it had alluded to in its rulings on Mehmet Hasan Altan v Turkey (para 166) and Şahin Alpay v Turkey (para 138). The Court’s unequivocal indication that Mr Kavala must now be released without delay presents a clear test for the Turkish state. As of 19 December 2019, Osman Kavala was still in detention without any indication on his release.

A Report from the Turkey Litigation Support Project Securing access to justice in Turkey remains a big challenge, especially for those whose rights were violated during the State of Emergency declared in July 2016. During the State of Emergency, the Government adopted a number of “atypical” emergency measures under more than 30 executive decrees seriously limiting and, in some cases, totally waiving numerous fundamental rights and freedoms by relying on exceptional powers under the Constitution. One hundred thousand public sector workers were dismissed and legal entities including newspapers, television companies, associations and foundations were closed down without individualized reasoning or evidence to support these actions. For a long time, the lack of a clear avenue for appeal of these decisions left those affected in obscurity. Following the adoption of the Decree Law No. 685, establishing the State of Emergency Inquiry Commission (“the Commission”), tens of thousands of people who were dismissed and the entities closed under the emergency decree laws have been forced to apply to the Commission before having recourse to a judicial remedy. A year after the operation of the Commission, the Turkey Human Rights Litigation Support Project (TLSP), started to carry out a research study to assess whether the Commission offered an effective remedy to challenge measures adopted during the state of emergency or whether it stood as yet another obstacle for victims to overcome in order to access justice in Turkey. During the study our researcher and the TLSP team reviewed the decisions and reasoning adopted by the Commission in 193 applications as well as national legislation, reports and statistics. The project collected qualitative and quantitative data supported by interviews with lawyers, applicants and experts and prepared an evaluation report by analysing this data. In this report, the Commission’s structure and functioning is evaluated by taking into account the main human rights issues with regards access to justice. Moreover, the decisions of the Commission are examined to determine whether it constitutes an effective legal remedy, in theory and in practice, in the light of the standards of the right to an effective remedy under international law. In the light of this data, the study on the State of Emergency Inquiry Commission reached the following conclusions: The Commission which was established as an ad hoc remedy does not have structural and practical safeguards ensuring its independence and impartiality and fails in capacity to provide a fair and effective process in the review of emergency measures. Applicants are forced to prove that they have no links with any proscribed groups or organisations without any prior knowledge about accusations or evidence against them. The situation is exacerbated by the lack of transparency and denial of meaningful participation in proceedings before the Commission. In the assessment of a person’s alleged link with a proscribed group, the Commission uses a very low evidential threshold, criminalizing everyday life practices without requiring proof of any disciplinary or criminal wrongdoing. Among others, the Commission mainly relies on intelligence information, confidential witness statements or unverifiable information obtained from so-called “social circles” without any possibility given to the applicants to challenge them. Finally, having rejected the vast majority of the applications in the proceedings short of fundamental due process guarantees, and with many more applications still pending before it, the Commission has demonstrably failed to meet with the standards of the right to an effective remedy under international law.

On 3-4th October, the Turkey Litigation Support Project (TLSP) organised a roundtable on the use of strategic litigation in the context of the human rights crisis in Turkey. The meeting took place at the Law Faculty of the University of Middlesex in London, and the TLSP team was joined by key lawyers, NGO representatives, academics and activists engaged in or supporting human rights litigation in Turkey. During the meeting, the participants shared their experiences and discussed numerous issues related to the challenges of human rights litigation in Turkey and beyond to reflect on how human rights litigators might think strategically going forward.

On 26 July 2019 the Constitutional Court of Turkey delivered a judgment concerning freedom of expression of ten academics who were convicted under anti-terrorism law for signing a peace petition, a group publicly known as “Academics for Peace”. In this leading case, the judges of the Grand Chamber were evenly divided: whilst eight judges were against finding a violation, the other eight judges, including the President of the Court whose vote had a special weight pursuant to Art.57 of the Rule of the Court, decided that the applicants’ right to freedom of expression was violated. Background On 11 January 2016, a petition called “We will not be a party of this crime” was made public with initial signatures from 1128 academics and researchers from Turkey and abroad, criticising the Turkish government for its implementation of recent curfews and anti-terrorism operations in Kurdish districts of Turkey. In the petition, the use of curfews and employment of heavy weaponry by security forces were criticised as “deliberate and planned massacre” perpetrated by the state violating human rights and other obligations under international law. The authorities were urged to immediately end the violence; to punish those responsible for human rights violations, to provide redress for damages, to allow access of independent observers to the region and lastly, to create conditions for lasting peace in the region. After its publication, the President severely criticised the signatories, accusing them of being “supporters of terrorism”, “dark forces” or “fake academics” and a smear campaign against these academics was disseminated further in pro-government media. Afterwards, public prosecutors across the country filed indictments against the signatories charging them mainly with the criminal offence of disseminating propaganda in support of the PKK pursuant to Article 7(2) of the Anti-Terror Law (Law no. 3713). Some of the academics were arrested and detained during these proceedings. Administrative and disciplinary sanctions were imposed against them by their Universities and a number of them were dismissed by executive decrees during the state of emergency with ensuing limitations on their passports and employment in public sector. Criminal Proceedings In their decisions, the ‘heavy penal courts’ held that the applicants had justified and legitimised the actions of a terrorist organisation by presenting the state’s military operations as “massacres” causing the death of civilians in the petition, which amounted to propaganda in support of PKK. Taking into account ongoing conflict and security risk in the region during that period concerned, they convicted the applicants under Article 7(2) of the Anti-Terror Law. The applicants’ requests for appeal were rejected by the higher courts. As to the execution, the prison sentences were deferred for all convicted applicants, but one, Füsun Üstel, who went into prison to serve her criminal sentence of 15 months following the appeal court’s decision upholding her conviction. For those whose sentences were deferred are subjected to a probationary period during which if any other offence is committed, full sentences would be served for both offences. Complaining that their convictions constituted a violation of their rights to freedom of expression, fair trial and prohibition on restricting rights for illegitimate purposes, as guaranteed under Articles 10, 6 and 18 of the European Convention of Human Rights (ECHR), the applicants submitted an individual application to the Constitutional Court (CC). The Judgment of the CC In its judgment, citing its recent judgment in Ayşe Çelik case, the majority of the Court stressed once again 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 organization (para. 80). In the decision it was asserted that for propaganda for a terrorist organization to be criminalised, two conditions set out under Article 5 of the Council of Europe Convention on the Prevention of Terrorism must be met, namely, the special intent for disseminating propaganda and a danger to public order that a terrorist offence of a similar kind would in fact be committed. As to the latter condition, the CC stressed that the prosecuting authorities had to show that danger of a certain level had arisen taking into account the specific circumstances of each case (para.84). Otherwise, criminalizing indirect incitement to terrorism (through criminalizing apology, legitimising or praising a terrorist organization or its conducts) may potentially pressurize freedoms, particularly political expression. Moreover, the majority of the Court challenged the assumptions made by prosecuting authorities and the instance courts that the impugned petition was organised on the basis of a call made by the PKK, having sought support for its aims in the region, due to the lack of evidence (para 89 and 95). Furthermore, the majority rejected any negative inferences being drawn against the applicants from the fact that the petition only called on the state authorities to end conflict and violence but not the PKK (para.96). In this regard the majority noted that one-sided or biased information or opinion could not be a justification for an interference with the freedom of expression, which would otherwise risk limiting the public debate to which civil society contributes through its appeals to public authorities (para.97). To assess the perceived danger and necessity of an interference, the CC called for a complete analysis of all circumstances of the case taking into account content, context, identity of the person who made the impugned expression, timing and impact of the statement as a whole (para.86). On this basis, the majority disagreed with the lower courts’ analysis and found that content of the petition did not praise, justifies or incite the violent methods or terrorism but rather called for the end of conflict and violence and respect for human rights. In this connection it reiterated that even those expressions that are deemed “to offend, shock or disturb the state or any sector of the population” are protected under the right to freedom of expression (European Court of Human Rights (ECtHR), Handyside v. the United Kingdom, No: 5493/72, 7/12/1976 para.49). Paying special attention to the identities of the applicants as academics, who would enjoy broader freedoms to express their opinions, the judgment confirmed that strict protection is required for academic expressions and also those related to matters of public interest as seen in the instant case. It reiterated that the acts or negligence of public authorities were subjected to public scrutiny in a democratic society and that authorities have to tolerate criticism. In the proportionality assessment, noting the severe chilling effect of resorting to criminal law, even if a criminal sentence is suspended in the end, may result in limiting public debate and silencing different voices in a democratic society. In conclusion, observing that the applicant’s statement had not praised or glorified violence nor had it aimed to instill hatred, the majority decided that the applicants’ conviction under Article 7(2) of the Anti-Terror Law did not correspond to “a pressing social need” and thus, their right to freedom of expression under Article 26 of the Turkish Constitution was violated. A Brief Assessment of the Judgment This is an important judgment underlining the fundamental principles of freedom of expression particularly in relation to political expression in the context of fight against terrorism. The judgment calls for a stricter interpretation and application of the offence of disseminating propaganda in support of a terrorist organisation under Article 7(2) of the Anti-Terror Law, given the relevant international standards and case-law of the ECtHR. It challenges subjective assumptions made by prosecuting authorities or courts, exceeding the legal limits of the impugned provision and requests that a link to be established between the elements of propaganda and the impugned expression and any proof to be shown for the perceived risk of terrorism to justify the criminalisation of propaganda under Art. 7/(2) of Anti-Terror Law. Another positive aspect of the decision is that the judgment stressed the importance of academic freedoms, entailing freedom of opinion and expression by the members of academia not only on issues of their expertise but also on any matters of public interest, calling closer scrutiny for any interference by authorities (para.111). On the other hand, some elements in the judgment raises familiar concerns. For instance, the CC seems to have felt obliged to state that “the Constitutional Court is not in any ways in agreement with the content [of the petition]” and unnecessarily remarked on the tone used in the petition by referring it “biased and offensive containing exaggerated comments” and being “aggressive towards security forces” (para.124). Despite the applicants’ allegation that the real aim of their prosecution was to silence and punish them as part of a larger campaign targeting dissents, the Court conveniently did not find it necessary to examine this claim. The reasonings of dissenting judges presented at the annex of the judgment are noteworthy to show the variation of interpretations on the nature of the crime of propaganda for terrorism and on the limits of freedom of expression in a democratic society.. As presented in the the first published dissenting opinion (signed by judges Serdar Özgüldür, Burhan Üstün, Muammer Topal and Rıdvan Güleç) the dissenting four judges seem to be in complete disagreement with the reasoning and conclusion adopted by the court as they asserted that propaganda against “integrity and unity of the nation and country” and any expression that contradicts with “the principle of loyalty to the state” could not be protected under freedom of expression. This defies established principles and the case-law of the ECtHR on freedom expression. It reflects the findings of the international monitoring bodies, such as the Commissioner for Human Rights, raising concerns about tendencies in the Turkish judiciary to see their primary role to protect “the state” over protecting the rights of individuals. Similarly, the second dissenting opinion (signed by judges Kadir Özkaya, Recai Akyel, Yıldız Seferinoğlu and Selahaddin Menteş) emphasises on the “duties and responsibilities” of individuals, including academics, in exercising their freedom of expression, and criticises the declaration for its accusative statements against the state authorities in the time when the conflict had been at its peak. These judges noted that the offence of disseminating propaganda in the Turkish law is not a crime of “harm” but a crime of “danger” and that state authorities have a “broad margin of appreciation” in criminalising propaganda for terrorism, particularly if the impugned statement has any links with violence. By relying on an abstract risk and reversing the burden of proof against the freedoms, they asserted that the statements in the petition, as negatively portraying the state authorities and its operations against terrorism, would have a potential to incite members of PKK or its sympathisers to resort to violence or to encourage them to commit terrorist crimes at time concerned (paras.35, 36 and 39). Despite its shortcomings, this ruling, as it stands, has set precedent for more than 700 academics whose cases have been pending before the domestic courts and for many others prosecuted under Article 7(2) of Anti-Terror Law, a provision which has been extensively used to restrict legitimate criticism and peaceful expressions in Turkey. The divided opinions in the CC , however, indicates that fluxes in the case-law may continue and the protection provided for expressions critical of the authorities may not reach to the level required by the Art. 10 of the ECHR in every case. Nevertheless, it represents an opportunity for the CC to consolidate the approach taken in this judgment and send clearer messages to the implementing authorities, hopefully with less divided majority in its future rulings. The Turkey Litigation Support Project The Turkey Litigation Support Project (TLSP), jointly with Amnesty International, ARTICLE 19 and PEN International, submitted a third party intervention before the ECtHR on three applications concerning the cancellation of passports of academics who signed the same petition. The TLSP also provided expert opinions examining international law standards relevant to the criminalisation and prosecution of free expression which have been submitted before the Heavy Penal Courts trying a group of Academics for Peace. It further participated in a number of actions, including urgent appeal calls to the UN Special Procedures, to raise awareness of the situation of academics in Turkey. The TLSP will continue monitoring the developments in these cases and implementation of the CC judgment against the worrying criticism made by the governmental authorities of this important ruling.

The Turkey Litigation Support Project, Human Rights Watch and the International Commission of Jurists intervened in the case of Taner Kilic v. Turkey before the European Court of Human Rights (the ECtHR). The case concerns the arrest and detention of the applicant, a respected human rights lawyer and former Director of Amnesty International Turkey. It epitomises some of the most fundamental human rights challenges in Turkey today, involving widely documented restrictions on freedom of expression, association and assembly of human rights defenders (HRDs), a rapidly closing civil society space under the emergency regime, and the broadening reach of anti-terrorism legislation applied against HRDs with wide-reaching implications for public debate, participation in public affairs and the protection of human rights. Against this background, the intervention outlines the factual context of the situation facing HRDs in Turkey. It highlights international and comparative standards governing obligations towards them, including the limits prescribed by Article 18 of the European Convention on Human Rights. It further provides comments on key principles necessary for a rule of law approach to the application of the criminal law, against the legal and practical pattern of excessive resort to criminal law against HRDs in Turkey. Based on all these grounds, the intervention concludes that “the criminalisation of HRDs requires particularly rigorous oversight by the Court, given its impact on an array of rights, including in this case Articles 5, 10, 11 and 18, on the authority of criminal law and on the ability to defend human rights in Turkey.”

This week TLSP and LLG made submissions to the UNHRC as part of Turkey’s third Universal Periodic Review process. The submissions focus on: the effect of the current security situation in the east and southeast of Turkey on fundamental rights and freedoms continued discrimination against the Kurdish population the effect of measures adopted under the State of Emergency (including mass dismissals of civil servants, an increase in reported cases of arbitrary detention, torture and ill treatment, erosion of the independence of the judiciary and the active persecution of legal professionals) ongoing impunity with regards to alleged human rights violations conducted by state officials

This week TLSP and LLG made submissions to the UNHRC as part of Turkey’s third Universal Periodic Review process. The submissions focus on: the effect of the current security situation in the east and southeast of Turkey on fundamental rights and freedoms continued discrimination against the Kurdish population the effect of measures adopted under the State of Emergency (including mass dismissals of civil servants, an increase in reported cases of arbitrary detention, torture and ill treatment, erosion of the independence of the judiciary and the active persecution of legal professionals) ongoing impunity with regards to alleged human rights violations conducted by state officials

Amnesty International, the International Commission of Jurists and the Turkey Litigation Support Project intervened this week in the case of Piskin v. Turkey before the European Court of Human Rights. The case concerns the dismissal of a public institution employee pursuant to Emergency Decree no. 667 due to his alleged links to an organisation prescribed as terrorist by the State. Relevant to the situation of almost 130,000 persons dismissed from their jobs during the period of the State of Emergency, the case raises significant questions regarding procedural rights in employment proceedings leading to the dismissal of state employees on grounds related to national security, including under a State of Emergency as well as the application of the principles of legality, legal certainty and non-retroactivity in the field of counter-terrorism. The Interveners address the following matters in the intervention: the applicability of the criminal limb of Article 6 of the European Convention of Human Rights (Convention) to dismissal proceedings in cases where the proceedings involve a determination of facts which constitute a “criminal offence” as understood under the autonomous meaning of the term in the Convention, the lack of procedural guarantees in the dismissal process necessary to comply with Article 6, in particular the principle of presumption of innocence, the application of the principles of legality, legal certainty and non-retroactivity to dismissal proceedings, where they determine membership of, participation in or association with, a terrorist group, including with regard to Article 7 of the Convention and the application of state of emergency decrees to events that occurred before the declaration of the State of Emergency. Reviewing the Turkish “mass dismissal” process carried out by way of State of Emergency decrees in the context of the State of Emergency, the Interveners highlight that “the permanent nature of the sanctions suggest that their purpose is more punitive and deterrent rather than preventative” and taken as a whole have a severe impact on a person’s life, serving the function of a criminal rather than administrative sanction. Despite this, many of those dismissed could not avail themselves of their defence rights as protected under domestic and international law. In a process that failed to meet the procedural safeguards protected in Article 6 of the Convention, many dismissed public sector workers and employees of the public institutions working under different forms of contracts challenged their dismissals in domestic mechanisms without knowing what allegations they were facing, and without knowledge of any evidence against them.

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 are considered by the Turkish authorities to be connected to the Gülen movement, and 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 detention) 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. The complaint was initially brought in May 2017 by family members of the authors, who complained to the Committee that the applicants were being held in detention and at risk of being subjected to torture at an unknown location. Ordering interim measures on 19 May 2017, the Committee requested Turkey to take all necessary measures to: confirm the whereabouts of the authors; bring them immediately under the protection of the law; take all measures necessary to enable the authors to be in contact with their relatives; promptly bring them before a judge; and finally to give them access to a lawyer of their choice. In October 2017, the Committee denied Turkey’s request to lift interim measures and again requested that the individuals be given access to a lawyer of their choice, prompt medical care and the ability to communicate with and be visited by their family members, counsel or other individuals of their choice. Finding Turkey to be in violation of the ICCPR and requiring the release and compensation of the authors, who remain in detention, the opinion is an important one. In its opinion, the Committee considers in detail both the necessity and proportionality of the detention of individuals under state of emergency decrees, the compliance of Turkey’s derogation with Article 4 of the ICCPR, the effect of the coup attempt on Turkey’s justice system and its impact on the requirement of exhaustion of domestic remedies, and the effectiveness of the Constitutional Court as a means to challenge detention in these circumstances. Although the Committee draws on the case law of the European Court of Human Rights (ECtHR), it reaches several important conclusions that are different to the ECtHR’s - most notably on the issue of the effectiveness of the Constitutional Court as a remedy. Rendition from Malaysia to Turkey On the issue of rendition, the Committee found the author’s claims to be inadmissible. In particular, it found that the information on file could “not allow it to conclude that the authors were removed to Turkey under the effective control of Turkish authorities.” An individual opinion of Mr. Gentian Zyberi, dissenting on this point, argued that the Committee should have found Turkey responsible for violating Article 9 which guarantees the right to liberty and security of the person, based on its complicit and active role in the authors’ unlawful removal from Malaysia. Admissibility: State of Emergency Derogations and The Exhaustion of Domestic Remedies Turkey challenged the admissibility and merits of the authors’ claims under Articles 9, 10 and 14 of the Covenant on two grounds. Firstly, they argued that the measures complained of fell within the scope of Turkey’s derogation under Article 4. In this light they argued that the measures adopted under emergency decree laws were both necessary, proportionate, and in pursuit of a legitimate aim in the wake of the attempted coup. Secondly, they argued that the author’s claims were inadmissible on the grounds of failure to exhaust domestic remedies, as they had not appealed the detention decision of the Ankara Criminal Magistrates’ Office, nor had they made an individual complaint to the Constitutional Court. On the issue of exhaustion of domestic remedies, the Committee took note of the authors’ arguments that filing an individual application before the Constitutional Court could not constitute an effective remedy as: a) the Court is not competent to deal with measures imposed under the state of emergency decree laws; b) the process would be unreasonably prolonged; and c) they are unable to rely on effective legal representation and assistance in order to appeal to the Constitutional Court. Dealing with these assertions, the Committee refenced two decisions of the ECtHR that expressed concern as to the effectiveness of a remedy of an individual complaint to the Constitutional Court in cases of pre-trial detention, as a result of the non-implementation, by lower courts, of the Constitutional Court’s findings of a violation (see Mehmet Hasan Altan v Turkey and Sahin Alpay v Turkey). The Committee further noted, again referencing the ECtHR, that the burden of proof lies with the government to prove that the remedy of an individual complaint to the constitutional court was effective “both in theory and in practice.” Applying these principles to the present case, the Committee found that the government had failed to include any information in the file that would support the effectiveness of the remedy of a complaint before the Constitutional Court and were therefore unable to show that it would have been effective to challenge the authors’ detention under state of emergency decree laws before the Constitutional Court. Turkey also submitted that the author’s claims under articles 6, 7, 10 and 14 of the Covenant were inadmissible for failure to raise them before a domestic authority. In response, Mr. İsmet Özçelik argued that he had no knowledge of Turkish criminal procedure, and that his lawyer, who had been assigned by the Turkish Bar Association, had taken no action despite being informed that his client had been subject to ill-treatment, instead trying to persuade him to confess to crimes he did not commit. Emphasizing that the authors of communications “must exercise due diligence in the pursuit of available remedies” the Committee found that the authors had not provided any specific information or substantiation of having raised the issues before relevant authorities or their own counsel, and therefore found these claims to be inadmissible. While agreeing with the Committee that authors of communications must exercise due diligence in the pursuit of available remedies, Mr. Gentian Zyberi in his partly dissenting opinion held “such pursuit can only take place in an environment which is conducive to such efforts.” Highlighting the fact that one third of judges and prosecutors had been dismissed in the wake of the coup, and 2,386 judges and prosecutors detained, he argued that the Turkish legal system does not provide an environment conducive to upholding the standards of due process. The prolonged detention without charge or trial, within this context, “should have guided the Committee to put more weight to the second sentence of Article 5(2)(b) of the Optional Protocol, which justifies non-exhaustion of domestic remedies when unreasonably prolonged.” Regarding Turkey’s submission that the acts in question fell within the scope of a valid derogation under Article 4, the Committee noted that the two necessary conditions for valid derogation had been met. Namely, that the situation arising in the wake of the coup amounted to a public emergency threatening the life of the nation (as confirmed by the European Court of Human Rights and the Turkish Constitutional Court) and that the official state of emergency had been properly proclaimed. However, when assessing the measures adopted under the state of emergency, the Committee found that Turkey had failed “to explain how the authors were linked to or posed, in any way, dangers that were envisaged under the declaration of the state of emergency in the territory of the State party, or how their pre-trial detention under the emergency decree laws was strictly required by the exigencies of the security situation.” In this regard, the Committee found the measures adopted in this case did not comply with the principles of proportionality, consistency and non-discrimination. The Merits: Reviewing the Arbitrary Nature of the Authors’ Detention The Committee reiterated that “the fundamental guarantee against arbitrary detention is non-derogable” and that even situations under article 4 “cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances.” When assessing arbitrariness however, the existence and nature of the public emergency are relevant considerations. The notion of arbitrariness is interpreted by the Committee broadly “to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.” When reviewing the authors’ detention in light of this, the Committee highlighted that there was no evidence provided to substantiate the State’s claim that the authors had been promptly informed of the reasons for their arrest or the charges against them. In addition, the Committee found that there was no evidence provided to justify the detention of Turgay Karaman, and the only evidence against İsmet Özçelik was the use of the Bylock application and the deposition of funds in the Bank Asya. This failed to meet the criteria of reasonableness and necessity. The authors’ detention therefore amounted to a violation of their rights under article 9 (1-2) of the Covenant. The Committee also paid close attention to the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power. While the exact meaning of “promptly” may vary depending on objective circumstances, the Committee reiterated that delays should not exceed a few days from the time of arrest. Any delay longer than 48 hours must remain absolutely exceptional, any derogation from this time frame in times of public emergency must be justified as strictly required by the exigencies of the situation and periodically and consistently re-examined in light of possible alternatives. The fact that the authors’ case took 11 days to be brought before a judge and has not been re-examined since could not be considered as strictly required by the exigencies of the situation, and therefore constituted a violation of Article 9 (1-3) of the Convention. In accordance with article 2(3)(a) the Committee found Turkey is under an obligation to provide an effective remedy to the authors, in this case the release and provision of adequate compensation for the violations suffered. The Committee has given Turkey 180 days to provide information about the measures taken to give effect to the Committee’s views.

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. Speakers: 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) Co-Hosts: Research Institute on Turkey Article 19 Columbia Global Freedom of Expression Columbia Institute for the Study of Human Rights Turkey Litigation Support Project Location: Columbia SIPA 420 W 118th Street, New York, NY Room #707 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 5(1)(c). 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 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

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

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). The Turkey Litigation Support Project worked with Mr Cihan Aydin, representative of the 6 applicants. Under Emergency Decree Law No. 674, the applicants, who were at the time elected members of the Municipal Council, were prevented from holding meetings and participating in public affairs. Their functions were assumed by a ‘trustee’ appointed by the government under Emergency Decree Law No. 674, a situation that continues despite the lifting of the state of emergency. Before the UNHRC, the applicants contend that Turkey, a state party to the International Covenant on Civil and Political Rights (ICCPR), has failed to meet the requirements necessary for lawful derogation under Article 4 and that the suspension of the Council of the Greater Municipality of Diyarbakir constitutes violations of Articles 25, 26 and 2(3) of the ICCPR. The notice of derogation was insufficiently precise, the measures were still ongoing at the time the complaint was submitted, and the measures have neither been shown to be necessary or proportionate to the stated aims of the fight against terrorism. Moreover, restrictions adopted by Decree Law No. 674 cannot be said to be lawful and reasonable. The law lacked clarity and foreseeability, and was neither necessary or proportionate in its aim of addressing the perceived national security threat. Additionally, it lacked sufficient legal safeguards and has been applied arbitrarily. There has thus been a violation of the applicants’ and the electorate’s rights under Article 25 (a) and (b) of the ICCPR as they were prevented from exercising their right to take part in the conduct of public affairs through the election of representatives after the suspension of the Municipal Council. The applicants also complained that the law in this case was applied in a manner that targeted predominantly Kurdish politicians and those of a particular political opinion, thereby constituting a violation of the right of the applicants to non-discriminatory treatment under Article 26 of the ICCPR. Lastly, the complaint raises concerns surrounding the independence, impartiality and competence of the judiciary in Turkey. The influence of the executive over these bodies, as well as confusion and lack of access to adequate legal avenues for redress, has contributed to an ineffective basis for legal remedies for rights violations flowing from state of emergency measures. The Constitutional Court’s decision to reject the applicants’ case on the grounds that it is unable to constitutionally review legislative acts, has resulted in a clear lack of accessibility to even the very possibility of an effective domestic remedy for the rights violations suffered by the applicants. In the absence of any other available remedy, or adequate aggregate of remedies, this constitutes a violation of Article 2(3) when read with Articles 25 and 26 of the ICCPR. For more information on the case, contact us at info@turkeylitigationsupport.com

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 Amnesty International ARTICLE 19 PEN International

Ayşe Bingöl Demir participated in a panel discussion organized by Research Institute on Turkey (‘RIT’) on 1 February 2019.

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.