Turkish laws fail to protect accused
By Daniel Dombey in Istanbul
A human rights report criticised Turkey’s legal system for inadequate
protection of defendants, as prosecutors step up cases that could shape
the country’s political future.
The Council of Europe report said on Tuesday that Turkish defendants’
rights are hit by pre-trial detentions, which can last for 10 years,
extensive use of secret witnesses and obstacles that prevent defence teams
summoning witnesses, carrying out cross-examinations and challenging the
terms of incarceration.
Critics of the government argued that the many cases against past and
present army officers and journalists accused of belonging to
anti-government plots have spiralled out of control. The criticism comes
despite Turkish legal reforms in the early part of the past decade.
Ankara attacked the report for a lack of balance and legal and factual
mistakes, adding in a formal response that it “brings up criticism which
might not be considered to be encouraging in terms of the ongoing reform
process in the country”.
The report, compiled by Thomas Hammarberg, the council’s human rights
commissioner, attacked Turkey’s use of antiterrorism laws “in cases where
membership in a terrorist organisation has not been proven and when an act
or statement is deemed to coincide with the aims or instructions of a
It cited reports of cases mounted against protesters calling for free
education and school instruction in the Kurdish language. Ankara disputed
the report’s assertion that prosecutors detain suspects first and gather
evidence later, arguing that “collecting evidence to establish
well-founded suspicions has become the general practice”.
The government added that “activities aimed at achieving the goals of
terrorist organisation cannot be considered peaceful expressions of
But even Recep Tayyip Erdogan, the country’s prime minister, this week
expressed his unease with the detention before trial of Ilker Basbug, the
former chief of armed forces, in one of the most high-profile cases
involving alleged plots against the government. Mr Basbug, like many other
prominent defendants, faces charges under Turkey’s broad antiterrorism
laws. He is accused of seeking to overthrow the government and leading a
terrorist organisation, claims that Mr Basbug has called tragicomic.
Some see these cases as a step towards greater democracy and the country’s
emergence from the tutelage of the military, which ousted four governments
between 1960 and 1997.
“If the judiciary can now interrogate Turkey’s former chief of general
staff we have to accept that the processes of normalisation and the
increase in civilian influence are steps in the right direction,” wrote
Lale Kemal, a commentator in the newspaper Today’s Zaman. The paper
supports the movement of Fethullah Gulen, an influential Islamist cleric
whose group, critics say, is driving the agenda for prosecutions.
But the case against Mr Basbug highlights some of the contradictions of
the government position. At the heart of the case are the military’s
operation of websites that spread propaganda against the government and
Islamists but which Mr Basburg shut after they were exposed by a newspaper
article in 2009.
The arguments focus on a subsequent military directive to establish
similar websites, which Mr Basbug said he did not endorse and which, in
any case, did not take effect. While prosecutors argue that Mr Basbug was
behind the plan to revive the sites, the retired general has suggested
that they should look at the previous military command, which set up the
anti-government websites. Previous military chiefs also appeared to
threaten Mr Erdogan’s AKP administration with a coup in 2007.
Others argue that proceedings in separate cases have dragged in people who
have nothing to do with terrorist organisations. Nedim Sener and Ahmet
Sik, two journalists, have been accused of belonging to the Ergenekon
anti-government conspiracy. They initially supported the case against
Ergenekon, before being drawn in themselves.
“The case against Sik and Sener is extremely circumstantial,” says Hakan
Altinay, of the Brookings Institution think-tank, referring to the alleged
discovery of a file on the defendants’ computers, detailing demands for
media support for Ergenekon.
The defendants’ supporters deny the authenticity of the file. Their cases
raise questions about who else is vulnerable to prosecution, Mr Altinay
says. “Because that file exists, with a huge leap of faith you can argue
that anyone who goes after Gulen or the AKP is a terrorist,” Mr Altinay
says. “If this is the benchmark of freedom of expression then everyone is
ERDOGAN, JUSTICE AND THE RULE OF LAW
Since coming to power in 2002 Turkey’s prime minister, Recep Tayyip
Erdogan, has led his country some way down the road to becoming a more
open and liberal democracy. But a report on Turkey’s judicial system
published by the Council of Europe this week highlights the increasingly
halting nature of this advance.
The report cites “longstanding, systemic shortcomings in the
administration of justice in Turkey (that) adversely affect the enjoyment
of human rights”. These include lengthy proceedings and detentions,
sometimes up to 10 years; the use of secret witnesses; arrests of scores
of journalists; and uncertainty about the judiciary’s independence from
the executive. The report recognises the steps Mr Erdogan has taken to
give greater respect to human rights. He has also reined in the military,
which on four occasions since 1960 has ousted a democratically elected
government – often brutally – in the name of upholding Turkey’s secular
However, as Turkey’s appetite for EU membership fades, there have been
disturbing signs of a growing authoritarianism. The nets cast by those
officials investigating attempts to destabilise the mildly Islamist
government appear to be widening to encompass those who legitimately
This week the Turkish prosecutor launched an inquiry into the main
opposition leader for critical comments he made after visiting a prison
holding political opponents. Almost 100 journalists are being held in
prison, while complaints to the European Court of Human Rights have
exploded since 2009. According to the Council report, the judicial system
appears to have blurred the “frontier between terrorist acts and the
rights to freedom of thought, expression, association and assembly”.
The government denies that it is seeking to muffle critics by abusing a
nominally apolitical legal system. But to put fears to rest, Mr Erdogan
must deliver on his long-awaited promise to revise the constitution, an
authoritarian relic that validates the judiciary’s inclination to
prioritise the interests of the state over human rights. A new
constitution is urgently needed to enshrine not only freedom of expression
and other civil liberties but the fundamental rights of Turkey’s Kurdish
Mr Erdogan has gone further than any other Turkish leader by apologising
for the killing of 13,000 Kurds by the military in the 1930s. Yet so far
he remains unapologetic about the killing just two weeks ago of 35 Kurdish
civilians who were mistaken for militants in a bombing raid. Such
contradictions must be dealt with. This is even more important as Turkey’s
regional influence has grown after the Arab spring. Its government is now
touted as a role model for fledgling Arab democracies.
Mr Erdogan’s Justice and Development (AK) party may feel confident after
his third election win last year. With a mix of reform and pro-business
economic policies, the prime minister has delivered strong economic
growth, although there are signs this is now faltering. His foreign policy
has extended the country’s international influence and Turkey is a key
interlocutor in sensitive countries such as Iran and Syria.
This may be why Ankara’s western allies have been muted in their criticism
of recent developments. Yet silence serves no one’s interests. The AK
party may still be the preferred choice against a dysfunctional secular
opposition, but the economic boom is fizzling while the Syrian crisis has
shown the limits of Turkish influence.
A stagnating economy combined with rising authoritarianism is a recipe for
tension. To avoid it, Ankara should continue down the path on which Mr
Erdogan set out in 2002. Due process of law and political freedom are
non-negotiable in a true liberal democracy.