(ARTICLE 19/IFEX) – The following is an ARTICLE 19 letter to Prime Minister Bulent Ecevit: 6 July 2001 Mr Bulent Ecevit Prime Minister of Turkey Fax: +90 312 417 0476 Dear Prime Minister ARTICLE 19, the Global Campaign for Free Expression, is extremely disturbed at the recent prosecution in Ankara of a group of sixteen […]
(ARTICLE 19/IFEX) – The following is an ARTICLE 19 letter to Prime Minister Bulent Ecevit:
6 July 2001
Mr Bulent Ecevit
Prime Minister of Turkey
Fax: +90 312 417 0476
Dear Prime Minister
ARTICLE 19, the Global Campaign for Free Expression, is extremely disturbed at the recent prosecution in Ankara of a group of sixteen people, including unionists, writers and actors (1). The most recent trial in this case was on 29 June 2001, and the next is expected to be on 7 September 2001.
ARTICLE 19 believes that there are substantial problems with laws under which these charges are being brought, as well as with the procedure used, specifically that:
– the defendants are being prosecuted for exercising their legitimate right to peaceful political expression;
– civilians are being tried by military courts and furthermore judicial proceedings have not been sufficiently transparent.
All of the above are in direct contradiction to Article 10 of the European Convention on Human Rights, which states that:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
We therefore call upon your government to abandon the practice of trying civilians in military courts and amend Turkish legislation to allow the full enjoyment of the right to free expression without illegitimate restrictions from the authorities.
Background
According to our information, the defendants were tried on 29 June 2001 in connection with the publication of the book Freedom of Expression 2000, which contains 60 previously banned articles. Not only were the defendants, who are all civilians, tried by the General Staff’s Military Court, but most observers were prevented from entering the courtroom. The defendants were charged under Article 162 of the Turkish Criminal Code (TCK), which establishes that the re-publication of banned materials “is an independent felony and its perpetrator is subject to the same punishment” [as the author of the impugned article]. The defendants face a penalty of up to two years’ imprisonment. Furthermore, other legal actions have been initiated in connection with the publication of Freedom of Expression 2000 against the same defendants (2).
During the trial on 29 June the defendants’ lawyers reiterated the view, already put forth in previous hearings, that military courts lack objectivity and ought not to be employed to try civilians. As a form of protest, they refused to make statements in their defence. The trial has now been adjourned until 7 September 2001, which leaves the defendants in a state of uncertainty, generating a “chilling effect” on them, as well as all those who wish to protest peacefully against the actions of the authorities.
International Obligations
The trial of citizens in military courts violates the right to an “independent and impartial tribunal” enshrined in Article 6 (1) of the European Convention on Human Rights. In the landmark case Incal v Turkey, the European Court of Human Rights said, with regards to the Izmir National Security Court and the position of military judges:
[The military judges] are servicemen who still belong to the army, which in turn takes its orders from the executive … They remain subject to military discipline and assessment reports are compiled on them by the army for that purpose… Decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (3).
[In the use of military courts to try civilians] what is at stake is that confidence which the courts in a democratic society must inspire in the public and above all … in the accused… The Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces … the applicant could legitimately fear that because one of the judges … was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case (4).
The defendants’ lawyers referred to the above principles in the first hearing of this case on 23 May 2001, yet their objections were rejected by the Turkish court despite the fact that Turkey, by virtue of its ratification of the European Convention on Human Rights, is bound to abide by the final judgement of the European Court of Human Rights in any case to which it is a party, pursuant to Article 46 of the Convention. This is reiterated by Article 90 of the Turkish Constitution, stating that the international treaties into which Turkey enters should have precedence over domestic law. Turkey should therefore amend its existing legislation to give effect to the decision of the European Court in Incal v Turkey.
Another aspect of the trial of concern to ARTICLE 19 was the lack of transparency of the judicial proceedings. According to our information, a number of local and international observers were prevented from entering the court at the General Staff building in Ankara (5). Although it is acknowledged that in some extreme cases the presence of media representatives in courtrooms can be restricted, judicial proceedings should be as open and transparent as possible, in order to enhance public confidence in them. Indeed, the European Court held that “the holding of court hearings in public constitutes a fundamental principle enshrined in paragraph 1 of Article 6 … it is also one of the means whereby confidence in the courts can be maintained” (6).
We wish to remind your government that, in addition to the obligations arising from Turkey’s ratification of the European Convention on Human Rights, Turkey must meet the Copenhagen criteria in order to become a Member State of the European Union. The Copenhagen criteria include “stability of institutions guaranteeing democracy, the rule of law, human rights …”. Moreover, in the context of European Union enlargement, Turkey has committed itself to enact a new Criminal Code and to review the Constitution and other relevant pieces of legislation to enhance freedom of thought and expression, in light of the criteria referred to in Article 10 of the European Convention on Human Rights.
Recommendations
In light of the considerations set out above, we call upon your government to:
– immediately drop all charges against the sixteen defendants in connection with the publication of Freedom of Expression 2000, recognising that they merely exercised their right to express political opinions through peaceful means;
– abandon the practice of trying civilians before military courts;
– amend the Turkish Criminal Code to ensure compliance with Turkey’s international obligations, particularly Article 10 of the European Convention on Human Rights;
– ensure transparency of judicial processes, by allowing observers and the media to be present during the relevant deliberations;
– abandon the practice of intimidation of those who exercise their right to free expression.
We await confirmation that your government will take all necessary steps to ensure that the rights to freedom of opinion, expression and fair trial are enjoyed to the full in Turkey.
Yours sincerely
Federica Prina
Europe Programme Officer
Notes:
(1) Cengiz Bektas (Architect, writer, President of TYS: Turkish Writer’s Union), Sadik Dasdogen (Owner of BERDAN Printing House),Yilmaz Ensaroglu (President of MAZLUM-DER: Islamic HR Association), Siyami Erdem (President of KESK: Confederation of Civil Servants’ Unions at 2000), Vahdettin Karabay (President of DISK: Confederation of Revolutionary Labour Unions, at 2000), Omer Madra (Director of AÇIK RADYO: Open Radio), Etyen Mahcupyan (Journalist), Ms. Lale Mansur (Theatre, film and TV actress), Atilla Maras (President of TYB: Writers Union-Islamic, at 2000), Prof. Ali Nesin (Mathematics Professor, famous humorist and HR activist Aziz Nesin’s son), Ms. Zuhal Olcay (Theatre, film and TV actress), Husnu Ondul (President of IHD: Human Rights Association), Yavuz Önen (President of Human Rights Foundation and former President of The Union of Chambers of Engineers and Architects), Erdal Öz (Writer and publisher), Salim Uslu (President of HAK-IS: Confederation of Islamic Labour Unions), Sanar Yurdatapan (Composer, spokesperson of the Initiative Freedom of Expression).
(2) The other cases are simultaneously being carried out by State Security Court No. 5 in Istanbul, for “terroristic and Islamic propaganda” (under Art. 7 and 8 of the anti-terror law and Art. 312 of the TCK); the Criminal Court of Istanbul-Uskudar, for insulting the state (under Art. 159 of the TCK), the Assize Court of Instanbul-Uskudar, for insulting the national symbols and regliion (under Art. 145 and 175 of the TCK).
(3) See the case of Incal v Turkey, EHHR, No. 41/1997/825/1031, Judgement of 9 June 1998, para 68.
(4) Incal v Turkey, para 70-71.
(5) These include Ms. Annie Pforzheimer from the American Embassy, Mr. Haaken Swane from Norvegian Embassy, Mr. James Logan from Amnesty International, Mr. Eugene Schoulgin, Chairman of International PEN – Writers in Prison Committee, Mr. Louis Gentile from Canadian PEN, Mr. Nazif Öztürk, President of Unification of Writers of Turkey, Prof. Veli Lök and other representatives of the Human Rights Foundation.
(6) Diennet v France, EHHR, Series A 325, Judgement of 26 September 1995, para 33.
Recommended Action
Similar appeals can be sent to:
Mr. Bulent Ecevit
Prime Minister of Turkey
Fax: +90 312 417 0476
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