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PEN International, along with our partners ARTICLE 19, the Committee to Protect Journalists, English PEN, Freedom House, and P24 have submitted a joint report to the United Nations on the situation of freedom of expression in Turkey ahead of the country’s human rights review before the United Nations in January 2015. The report for the Universal Periodic Review (UPR)  is a follow up to PEN’s 2011 submission on the country.

The joint report found that despite accepting 8 recommendations to bring the national legislation and practice in line with international freedom of expression obligations in 2010, the Turkish government has made inadequate efforts to implement these recommendations, and the situation for freedom of expression has worsened in Turkey.

Read the full report here.

This submission examines five key freedom of expression issues: legislative restrictions to freedom of expression; the misuse of the Anti-Terror Law (TMK) and organised crime provisions within the Turkish Penal Code (TCK); attacks on freedom of expression and freedom of press, including political interference in media; new restrictions on freedom of expression, including the National Intelligence Agency Law (No. 6532), increasing restrictions on freedom of expression online.

Legislative restrictions to freedom of expression

Reform Process

During its first UPR, the Turkish government accepted six and rejected three general recommendations to align its Penal Code with international standards. Of the accepted recommendations, 3 judicial reform packages directly aimed to ameliorate the human rights and freedom of expression situation in Turkey.

The Third Judicial Package suspended trials brought prior to 31 December 2011 under legislation restricting expression. Since they were being tried under the TMK, the bulk of writers and journalists in prison were excluded from this partial amnesty. Even those who ‘benefitted’ were effectively granted suspended sentences: the charges would be dropped only if they did not commit ‘similar offences’ within the subsequent three years. The threat of old trials being reopened is a thinly veiled incentive for self-censorship. The Fourth Judicial Reform Package rendered propaganda illegal only if it ‘legitimises or praises, or incites others to resort to an organisation’s coercive, violent or threatening practices’.

The Fifth Judicial Reform Package focused on the judicial process, removing Special Authority Courts and Prosecutors and bringing an end to an era of anti-terror trials conducted by a judiciary given extraordinary powers. A five-year cap and more stringent evidence requirements were placed on pre-trial detention, leading to many releases; and restrictions on lawyers’ rights to access investigation dossiers were lifted. But rather than addressing human rights concerns, these positive moves were only implemented after a powerful judiciary had turned its attention to alleged government corruption.

Despite these reforms, the revisions were not comprehensive and failed to align Turkish laws with international human rights standards on freedom of expression. Turkey continues to abuse the TMK and TCK to prosecute those exercising their rights to freedom of expression.

Imprisonment of Journalists

In 2012 and 2013, Turkey jailed more journalists than any other country in the world. Most of whom were jailed on charges under Turkey’s broadly worded anti-terror and penal code, and many of them spent months, even years, in detention without conviction.

As of 1 June 2014, Turkey was detaining a total of 11 journalists; since December 2013, 29 had been released awaiting trial. The 29 conditional releases were enabled by amendments in the Fifth Judicial Reform Package. Though commendable, the 29 releases are conditional, with re-incarceration a possibility if their trial ends in a conviction.

Criminal Defamation

The TCK currently criminalises defamation, and can result in fines or prison terms. Defaming a public official for the commission of their duty carries a higher minimum sentence or fine than the defamation of ordinary citizens. As such, many criminal defamation cases are initiated by highly placed officials, including the Prime Minister, following statements they see as defamatory, including statements made in the press or broadcast media. For instance, after an official complaint by Prime Minister Erdoğan himself, on 12 November 2013 Anadolu University student Osman Garip was sentenced to over a year in prison for continually ‘insulting’ Erdoğan on Facebook.

Civil Defamation

The European Court of Human Rights held that using civil defamation laws to afford greater protection to public officials is a violation of Article 10. Yet, there are many cases of the Prime Minister succeeding in civil defamation claims against those in the media who criticized him, such as when Erdoğan was awarded 2,000 lira (approx. 900 USD) in damages from author İhsan Eliaçık who had accused Erdoğan of being a “dictator, a corrupt leader, provocateur, liar and arrogant” on Twitter.

Insulting the Turkish Republic and Religious Defamation

TCK Article 301 criminalises ‘Insulting the Turkish nation, the State of the Turkish Republic, the Turkish Grand National Assembly and the Government of the Republic of Turkey or the judicial organs of the state’.  This controversial article is notoriously applied against journalists and writers, including the Turkish Nobel laureate Orhan Pamuk (2007) and Turkish-Armenian journalist Hrant Dink (2004), who was murdered in 2007. In the previous UPR cycle, Turkey rejected three recommendations specifically calling for the revision or abolishment of Article 301.

Article 216 of the TCK criminalises ‘inciting the population to enmity or hatred’, where ‘insulting religious values’ (216/3) is a pretext to stifle free speech, carrying a prison term of six months to three years, and continues to be used against those with contrarian religious views.

Anti-Terror Legislation

Terrorism,’ ‘organised crime’ and ‘propaganda’ are so broadly defined in the TMK and TCK, that they allow for the prosecution of journalists based merely on the coverage of terrorist activities, or for interviewing Partiya Karkerên Kurdistan (PKK) leaders and those merely expressing their freedom of expression rights.

Individuals are vulnerable to prosecution for advocating non-violent political ideas of legitimate public concern just because of the association of these ideas with certain armed organisations. They can be charged with committing crimes on behalf of a criminal organisation without being a member of that organisation’ (TCK 220/6).

Moreover, the use of anti-terror legislation in prosecutions results in aggravated prison sentences and pre-trial detention periods. To give one example, after 1,570 days of pre-trial detention, human rights defender Muharrem Erbey was released from charges of membership of an illegal organisation due to a ‘lack of evidence’.

Attacks on freedom of expression and press, including political interference in media

During the period of review, writers and publishers were subject to prosecution on grounds of defamation, denigration, obscenity, separatism, terrorism and insulting religious values. Non-judicial means of harassment are also common, including public condemnation of journalists by politicians, and political pressure on news outlets to change their editorial line.

Political interference in media outlets

There are many instances of journalists being personally attacked for publishing columns that are critical of the government and subsequently being fired by the media houses that employ them. There have been documented instances of the government interfering directly in the coverage of political events by private media companies, including a leaked telephone conversation between the prime minister and the controller of HaberTürk television, in which the prime minister ordered the controller to remove an opposition leader’s criticism of Erdoğan from the ticker at the bottom of the news broadcast. The Prime Minister later justified his intervention, thus confirming the conversation was real.

Government Unaccountability towards Media Outlets

The government has increasingly consolidated power over state institutions. Decree Law No. 649 stripped away the autonomy of independent higher regulatory boards. Media regulatory bodies including the Radio and Television Supreme Council (RTÜK) and Information Technologies and Communications Authority (BTK) now function under the direction of the government and are not independent. As a result, board decisions are often politically motivated and target individuals or groups that are critical of the government.

Media censorship during and after the Gezi Park protests

Initially, there was a media blackout on the Gezi protests in May 2013 with the largest media outlets remaining silent and ignoring the unfolding events, provoking sit-ins in front of media headquarters. This highlights the wider issue of media outlets engaging in self-censorship.

Pro-government station NTV provided a platform for the government to make statements in opposition to the protests without accommodating the views of the protesters, undermining the principle of impartiality. NTV Tarih, a history magazine owned by NTV, was shut down overnight after preparing a special ‘Gezi Park’ edition.

Throughout the protests, about 153 journalists who documented the events, supported the protestors or defended their rights were threatened and attacked as the government sought to silence those speaking out against it. Over 80 journalists and commentators writing critically of the government were fired or forced to resign in the wake of the Gezi Protests. There has been an increasing pattern of intimidation of foreign correspondents based in Turkey, ostensibly targeted for not respecting government spin on events.

New Restrictions on Freedom of Expression

Responding to a corruption scandal from December 2013, the government has sought to exert greater control over the media, social media, and access to information, resulting in a number of significant legal changes affecting freedom of expression.

National Intelligence Agency Law (No. 6532)

The National Intelligence Agency Law amends an older law (No. 2937) to dramatically expand the powers and reduce the accountability of the National Intelligence Agency (MİT). The law gives the MİT wide-ranging powers to conduct surveillance and collect information. All institutions and entities must comply with MİT demands for access to their data and archives, and no other law foreign or domestic can override this obligation. Interfering with the activities of the MİT, for instance by refusing a request for data, is punishable by two to five years in prison. These provisions violate the right to privacy and cannot even be contested because they are not subject to judicial scrutiny.

As well, the new law includes severe punishments for obtaining or publishing information about the MİT which is a clear threat to journalists as well as social media users who might obtain and publish information about MİT activities. They erode the right to freedom of expression and the right to access information.

The new law relieves any person complying with MIT’s requests of legal liability for violations of the law created by compliance. The article explicitly states that this law is superior to any other laws on this subject. As well, any investigations and complaints about the MIT can be blocked by the director of the MIT, who has discretion.

Increasing restrictions on freedom of expression online

Restrictive Internet laws have led to an increase in measures censoring online content. An estimated 48,537 websites have been blocked to date since the introduction of Law No. 5651 on ‘Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts’. Thousands of news sites and social platforms, such as YouTube, Vimeo, Dailymotion and Twitter have been blocked.

At the height of the Gezi park protests, Prime Minister Erdoğan called social media ‘the worst menace to society’; vowing in March 2014 ‘not to leave this nation at the mercy of YouTube and Facebook.’ Twitter was blocked just hours after Erdoğan promised to ‘wipe it out’, with YouTube following shortly after. Access to both sites was restored after Turkey’s Supreme Court ruled the blockings were illegal restrictions of the public’s right to obtain information. The bans were apparently imposed in an attempt to suspend anti-government leaks before the elections on 30 March. The bans validate concerns over the state of press freedom and freedom of information.

The amended Law 5651

Turkey passed amendments to Law 5651, commonly known as the Internet law, to beat back online leaks about high-level corruption. The Internet law allows the government to block URLs, an effect of which is that individual social media accounts (or even individual posts) can be blocked while the websites carrying those individual accounts remain accessible. This allows the government to engage in covert censorship with impunity. This is especially true if the blocking is done by a means other than court order, in which case it is unclear what public record would exist that censorship had occurred. Moreover, URL blocking requires deeper surveillance so the bill could provide a backdoor to more robust surveillance infrastructure and practices.

Internet users who express critical opinions or call for protest have become particular targets of repressive actions by the Turkish government. Throughout the Gezi protests, the government monitored social media and issued arrest warrants for those who organised or supported the protests via their Twitter and Facebook accounts.

The Internet law mandates retention of network data for a period of one to two years. Combined with the new MİT law, mandatory retention creates ample opportunity for violations of internet users’ right to privacy.

As well, the Internet law requires all ISPs operating in Turkey to join a ‘Union of Access Providers’, and forbids any ISP refusing to join from operating in Turkey. The law also states that the Union will not be able to draft its own bylaws, thereby consolidating the government’s power over ISPs. Law 5651 violates the European Convention on Human Rights, which is legally binding upon Turkey.

Recommendations

The co-authors call upon the government of Turkey to significantly improve the overall conditions for freedom of expression. In particular, the government of Turkey should:

Anti-terror legislation

  • Cease abusing anti-terror legislation and the penal code to prosecute journalists, bloggers, activists and other civil society actors
  • release those detained from prison and drop pending charges
  • reform counter-terrorism legislation
  • narrow definitions of ‘terrorism’, ‘organised crime’, and ‘propaganda’
  • ensure that the genuine purpose and demonstrable effect of any restriction on freedom of expression is necessary and proportionate to protect a legitimate national security interest

Defamation, insult to the state and blasphemy

  • Decriminalise defamation by repealing Article 125 of the Penal Code
  • Reform the Code of Obligations on civil defamation to ensure adequate defences for expression that is true or is in the public interest, and to guard against the abuse of law suits to silence criticism of public officials
  • Repeal Article 301 of the Penal Code on ‘Insulting the Turkish nation’
  • Reform Article 216/3 of the Penal Code criminalising ‘inciting the population to enmity and hatred’ to bring it in line with Article 20(2) of the ICCPR and the Rabat Plan of Action, repealing provisions that allow prosecution for ‘insulting religious values’ or for ‘blasphemy’

Freedom of press

  • Remove any restrictions or regulations that might place the media under political influence or compromise its vital role as public watchdog
  • Take appropriate action to promote media diversity and prevent undue media dominance or concentration
  • Promote transparency of media ownership making public the identity of their owners, and how it might reflect their persuasions or biases
  • Guarantee the safety of journalists and media workers. Legislative and policy measures must be adopted to prevent all attacks against journalists and eradicate impunity in episodes of violence and intimidation

Pre-trial detention

  • Release all persons in pre-trial detention or facing prison sentences for exercising their right to freedom of expression

Surveillance and Freedom of Expression

  • Repeal National Intelligence Agency Law (No. 6532), and ensure adequate judicial and political oversight for the security services
  • Restore judicial, prosecutorial, and parliamentary oversight of the National Intelligence Agency (MİT) in order to ensure that MİT actions affecting freedom of expression are proportionate and necessary in a democratic society

Freedom of expression online

  • Amend Law 5651 to protect freedom of expression online
  • Ensure that any blocking of websites, IP addresses, ports, network protocols or types of use (e.g. social networking) is justified in accordance with international standards

PEN International will be conducting advocacy around freedom of expression issues in Turkey in the run up to the21st session of the UPR in January 2015. For further information on PEN International’s policy and advocacy work at the United Nations please contact Sarah Clarke, International Policy and Advocacy Officer, at sarah.clarke@pen-international.org.

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