The ANF has attained the report by UN Freedom of Opinion and Expression Special Rapporteur David Kaye, who made an official visit to Turkey between November 14-18, 2016, to be presented on June 12 to the special session on Turkey as part of the UN Human Rights Sessions, currently underway in the UN Geneva Bureau.

The report to be presented in the 35th UN Human Rights Sessions is 21 pages long. Kaye prepared the Turkey Freedom of Opinion and Expression Report based on the meetings he held on his official visit to Turkey, and it includes harsh criticisms for Turkey, while calling on the AKP government to urgently end the unlawful situation regarding the freedom of thought and expression.

The report underlined that: “Across society, laws and policies of censorship and criminalization are working to repress opinion and expression in all of the places that are fundamental to democratic life – the media, educational institutions, the judiciary and the bar, government bureaucracy, political space, and the vast online expanses of the digital age. They do so notwithstanding limited evidence that the restrictions are necessary to protect legitimate interests such as national security and public order or the rights and reputations of others. Legal and institutional pressures coupled with increasing executive control and dominance, punctuated by the Constitutional amendments adopted in April 2017, erode the foundations necessary for the exercise of freedom of opinion and expression. In short, the mission illuminated a squeezing of civil society space that signals a radical backsliding from Turkey’s democratic path and deserves the most urgent attention to reverse.”

Highlights from the UN Special Rapporteur report on Turkey are as follows:

The Government has a critical duty to protect against terrorist threats, but international law mandates respect for human rights in the fight against terrorism. In keeping with these dual requirements, criminal offences should be narrowly defined and applied according to strict implementation of the standards of necessity and proportionality. Despite this, counter-terrorism and national security provisions in Turkish legislation are used to restrict freedom of expression through overly broad and vague language that allows for subjective interpretation without adequate judicial oversight.

State of emergency

The Government has introduced a series of legal amendments through emergency decrees, which bypass ordinary legislative procedure and will continue to be in effect after the state of emergency is lifted. Among those laws are amendments made to the Anti-Terror Law and the Electronic Communications Law (both through Decree 671). The Electronic Communications Law was amended to expand the grounds for content takedown.

The state of emergency decrees adopted in the aftermath of the coup attempt are far-reaching and give authorities wide discretionary powers to derogate from human rights obligations, without providing adequate channels for judicial review and appeal. The emergency decrees apply to anyone “assessed to be” a member of a terrorist organisation, as well as to anyone acting in union or contact with such organizations. The decrees lack criteria for assessing membership or contact and leave overly broad discretion to authorities responsible for their execution, waiving ordinary administrative safeguards. The lack of criteria for assessing membership also applies to the procedure by which the High Council of Judges and Prosecutors (HSYK), the High Courts and Constitutional Court are empowered to dismiss judges and prosecutors. The decrees do not specify criteria on which such assessments are to be based, nor do they require individualised reasoning. The persons concerned are not provided with evidence against them; many are unaware of investigations against them. The decrees also facilitate impunity and lack of accountability by affording full legal, administrative, criminal and financial immunity to administrative authorities acting within the framework of the decrees.

Attacks on the media and the right to information

On the basis of emergency decrees, over 100 media outlets were reportedly closed during the first six weeks of the state of emergency. Since 15 July 2016 and the time of the writing of this report, reports indicate that at least 177 media outlets have been closed; 231 journalists have been arrested (over 150 journalists are in prison); nearly 10,000 journalists and media workers have been dismissed; and the press cards of at least 778 journalists have been cancelled. Publications taking seriously investigative journalism and their role as a public watchdog frequently face harsh penalties under anti-terrorism, insult and state-of-emergency laws. Many of the closures affect outlets allegedly connected to the Gülenist movement, such as the large circulation Zaman, but many others have involved outlets without any such evident connections. While the situation has intensified in the period since the coup attempt, the assault on the press began well before July 2016.

In meetings with the Special Rapporteur, the authorities stressed that no journalist is prosecuted for “being a journalist”, but for having committed a crime. However, as seen below, examples of journalist arrests and prosecutions demonstrate an expansive definition of crime interfering with core values of freedom of expression.

Arrest, detention and harassment of journalists

At the time of the Special Rapporteur’s visit, an estimated 155 journalists and media workers were imprisoned, in most cases based on vague charges and with either very little or no evidence presented or publicly available. The figures may not reflect those who were released but continue to face charges and potential future imprisonment. What follows is a small sample of illustrative cases brought to the attention of the Special Rapporteur.

Media shutdowns

Media freedom in Turkey was under threat prior to July. Since then, the scope of the crackdown has broadened dramatically. On 27 July 2016, on the basis of emergency decree 667 and 668, authorities ordered the shutdown of over 130 media outlets. On 28 September 2016, another 12 television and 11 radio stations (owned or operated by members of the Kurdish or Alevi communities) were shut down, without the involvement of the judiciary or any review procedure, on charges that they spread “terrorist propaganda”. On 29 October 2016, another 11 Kurdish newspapers, two news agencies and three magazines were shut down on the basis of emergency decree 676.

The crackdown affects media outlets affiliated with the Gülen movement and journalists working or having previously worked for such outlets, journalists perceived to have connections to the Gülen movement, and independent, oppositional or minority media outlets and journalists accused of affiliation with the Gülen movement, despite little to no evidence to support these accusations. Dozens of journalists working for such outlets have been imprisoned while many others have been left unemployed, despite distant if any evidence of connection to the movement, let alone activities unlawful under Turkish law and subject to limitation under human rights law.

Media outlets subject to the emergency decrees are not limited to allegedly Gülen-affiliated media. The closure of Özgür Gündem, and the weekly Evrensel, and police raids on Cumhuriyet are examples of how the state of emergency has been deployed against critical or independent media outlets. On 16 August 2016, the daily Özgür Gündem was closed following a decision by an Istanbul 8th Criminal Court of Peace, on the basis of allegedly publishing terrorist propaganda and serving as a broadcasting organ for the PKK. The same day, the paper’s headquarters in Istanbul were raided and 22 media workers detained on charges of “resisting police”. They were released after giving testimony before prosecutors.

On 28 August 2016, the central offices of Azadiya Welat, in Diyarbakir, were raided by police and 23 employees were detained. Eight remained in detention as of January 2017.

Revocation of press-cards

As a result of the media shutdowns and the blacklisting of shuttered outlets’ journalists, over 3,000 journalists are without work and unable to obtain new employment. Over 600 yellow press cards, reflecting official accreditation, have been cancelled; others are barred from attending and reporting from Parliamentary meetings , depriving them of a critical tool for monitoring government. The Special Rapporteur is deeply concerned that the large number of cancelled press cards undermines the public’s right to information and the accountability of state institutions.

Restrictions on the Internet

All individuals face censorship online, with a serious impact on the public’s right to seek, receive and impart information and ideas regardless of frontiers. In December 2016, the Interior Ministry stated that the authorities had opened investigations into 10,000 people over social media posts, while 3,710 persons were detained for questioning and 1,656 suspects were formally arrested, over the previous six months.

Blocking of websites

As of March 2017, over 100,000 websites had reportedly been blocked in Turkey. The Government has blocked access to URLs including pro-Kurdish websites and news sources, as well as these outlets’ Twitter accounts. The Supreme Electoral Council of Turkey (YSK) blocked access to over 90 URLs for sharing polls before the elections. The TIB blocked access to five of the most commonly used LGBTI websites by the application of article 8 of Law no. 5651. Following an order by the Ankara Criminal Court of Peace in March 2015, 49 URLs were banned.

The Government pursues a policy of blocking websites following terrorist attacks. Two days after a suicide attack on 20 July 2015 in the town of Suruc, killing 32 people, a court banned access to 173 URLs as part of a ban on images and footage of the attack. The gag order was later lifted. Similarly, following a terrorist attack on 10 October 2015 in Ankara, killing more than one hundred people, the Turkish Supreme Board on Radio and Television (RTÜK) imposed a ban on broadcasting images and videos of the attack, and four days later, Ankara’s 6th Judgeship banned “all kinds of news, interviews, criticism and similar publications in print, visual, social media and all kinds of media on the internet” related to investigation of the attack. Similar orders have been repeated in other cases of attacks.

Despite national and European court rulings against the blocking of access to Twitter and YouTube, first instance courts continue to order such blockings on the basis of national security justifications. On two occasions in April and July 2015, Criminal Peace Judges briefly blocked Facebook, Twitter and YouTube following wide circulation of images related to terrorist acts, finding they amounted to “terrorist propaganda”.

Takedown requests

Turkey features among the countries with the highest number of removal requests sent to Twitter. In 2016, 4013 removal requests were made by Turkish agencies, while 1556 removal requests were made by Turkish courts. According to Facebook’s Government Request Report for the period January-June 2016, the company sought to restrict 861 pieces of content in response to requests from the Telecommunications Authority, Turkish courts, the Ministry of Health, the Ministry of Customs and Trade, and the Access Providers Union.

Network shutdowns

Authorities ordered network shutdowns in eleven cities in the southeast on 26 October 2016, following the detention of Diyarbakir’s mayor and co-mayor. The shutdown lasted approximately 12 hours, and cut off 6 million citizens. Similar shutdown took place on 12 September and 4 November 2016.

Criminalization of encryption

Several examples were brought to the attention of the Special Rapporteur of arrests for the alleged use of an encrypted messaging app, called ByLock. The authorities have linked ByLock to the Gülen movement, claiming that it is a secret communication tool for Gulenists. The arrests take place sometimes merely on the basis of the existence of ByLock on a person’s computer, and the evidence presented is often ambiguous. Reportedly, the MIT obtained a list of global ByLock users that has been used to track and detain persons. Tens of thousands of civil servants reportedly have been dismissed or arrested for using the application.

Academic freedom

Even before the coup attempt, the Government took aim at academics. In January 2016, thousands of academics signed a “Peace Petition”, condemning the Government’s security operations in cities of southeast Turkey. The petition called for a resumption of peace talks with the PKK. In response, many university administrations, at the instructions of the Higher Educational Council, have taken disciplinary actions, including dismissing signatories from their positions. The Government argues that the petition echoed a statement previously made by a PKK leader and thus constituted the spread of terrorist propaganda and insult to the state. On 15 January 2016, at least twenty academics were detained and investigated by the Istanbul Prosecutor’s Office.

Emergency decree no. 675 has been used to dismiss academics from university appointments. The Special Rapporteur spoke with academics who were at a loss to identify any cause for their removal, as they had no connection to the Gulenist movement or to the PKK. Following the attempted coup, the government dismissed approximately 27,000 teachers, as well as over 5,000 professors and administrators at universities. The licences of approximately 21,000 teachers in Gülen-operated schools were cancelled. Teachers of Kurdish origin, those with leftist views, or those who teach subjects such as science have been reportedly targeted. Elections within universities have been abolished and replaced with direct appointments by the President of the Republic, in effect erasing the autonomy of universities.

Under the state of emergency decrees of February 2017, another 330 academics were expelled together with 2,585 teachers. At the universities, seminars are reportedly cancelled because professors have been dismissed. The content of classes reportedly must be relayed to higher officials for approval. Further, several teachers’ union members expressed fear that the government would eradicate the choice for secular education.

Political activity

The space for political pluralism is shrinking, and opposition parties face terrorism-related accusations. On 20 May 2016, the immunity of 154 members of parliament from all political parties was retroactively lifted by a temporary amendment to the Constitution. The amendment targeted primarily the parliamentary group of the People’s Democratic Party (HDP), an opposition party, which had been subject to prosecution requests for statements made that were deemed insulting to the President or other public officials, terrorist propaganda or incitement to hatred. Several HDP leaders have been imprisoned on the basis of emergency decrees, as well as charges for making “false propaganda”. 117 investigations were initiated shortly before the Special Rapporteur’s visit, in addition to the already existing 683 cases. 500 of these cases belong to HDP and members of parliament of the HDP. The co-chairs of the HDP were arrested in November 2016 and later charged with propaganda, protest, incitement and similar crimes related to legitimate expression. They were sentenced to up to one year in prison and loss of their parliamentary seats. Approximately two thousand members of the HDP have been detained since the attempted coup, and 13 HDP deputies are currently in prison.

Dismissal of public officials

Between the time of the attempted coup and the Special Rapporteur’s visit, approximately 74,000 public officials had been removed from government positions, and 100,000 had been removed from public office for political, religious or other beliefs. The dismissals take place without trial, investigation or appeal possibilities. The government issues “blacklists” containing the names of those removed from public office, reducing the possibility that they will be re-employed in either the public or private sector, leading to what one civil servant described as “civil death”. According to figures provided by the Government, 30,000 public officials have been reinstated.

The Special Rapporteur is particularly concerned that the dismissals fail to identify specific criminal acts taken by targeted officials. In this context, it may be that the penalties target the opinions of individuals, as reflected in their alleged associations, in violation of Article 19(1) of the ICCPR.

Civil Society

Representatives of civil society emphasized that the deterioration of the right to freedom of expression does not result solely from the state of emergency. Pressures on civil society organizations limit the ability of individuals to enjoy the freedom of expression, whether individually or as a collective. On 11 November 2016, 370 NGOs operating in Turkey were suspended under emergency decree, for alleged links with terrorist organizations. The Ministry of Interior assured the Special Rapporteur that all suspensions would be individually reviewed, but on 22 November 2016, all of the suspended NGOs, plus an additional five, were permanently closed and their assets seized under emergency decree no. 677. This brought the number of closed NGOs since the attempted coup to 1,495. According to figures provided by the Government, 187 associations and 21 foundations have been reopened by decree laws. During the mission, the Special Rapporteur met with representatives of artistic and cultural centres, women’s rights organizations, children’s rights organizations, and organizations working toward equality on the basis of sexual orientation and gender identity.

In addition to being limited on the basis of overbroad and vague defamation and counter-terrorism grounds, funding restrictions and prior censorship represent two main barriers for artistic freedom of expression in Turkey. Several interlocutors pointed to the increasing use of certification systems to limit the circulation of films. The national cinema board, under the Ministry of Culture and Tourism, has the authority to evaluate films according to their consistency with public order, moral values, spiritual and physical well-being of youth, human dignity and copyright. Following amendments to the Turkish Arts Council (TÜSAK), the decision-making powers in the arts funding system is shifted to State-appointed officials rather than candidates representing artists’ associations.

According to women’s rights advocates, recent legislative changes have rolled back previous achievements in the area of women’s rights. The government has suspended or shut down women’s associations. Advocates claim that they have lacked access to information to challenge the shut downs. While women’s advocates stated that the EU harmonization process has helped gender equality in Turkey overall, they expressed concern that enforcement and implementation of existing laws are lacking.

Groups advocating on behalf of children bemoaned the lack of protections for the free expression rights of children. Children’s rights organizations pointed to changes to the education system in the past years that negatively affect children’s rights to access to information. In 2014, a reported 2200 children were detained for participating in protests and demonstrations, and 50% of those detained were reportedly under 11 years old. Children’s rights organizations said that they face persistent threat of shutdown. A leading NGO in this area was among those shuttered on 22 November 2016.

The lack of legal and policy protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals exacerbates a generally threatening environment for expression related to sexual orientation and gender identity. The Internet and digital security tools provide an important source of protection of LGBTI people in Turkey, and the compromise of digital platforms adds to their vulnerability. LGBTI people have a pervasive fear of being targeted by the government, a result of bans on LGBTI groups, targeting by pro-Government media, lack of protection for lawyers and advocates, restrictions on their ability to hold marches or otherwise express their views, and blocks on LGBTI-friendly social media applications.

The judiciary, the bar and due process

In the present context, the judiciary appears to be increasingly unavailable to those charged under the Anti-Terrorism and emergency laws. Nor does it appear available to the tens of thousands of individuals who have lost their employment according to vague accusations of association with the Gülenist movement and Kurdish organizations. The following elements call into question the legality of the restrictions applicable to freedom of expression.

RECOMMENDATIONS

The situation for freedom of expression in Turkey is in grave crisis and requires immediate steps for Turkey to be compliant with its obligations under international human rights law. The Special Rapporteur is not alone in his assessment. The recommendations that follow are largely consistent with those made by, among others, the Parliamentary Assembly of the Council of Europe, the Council of Europe Commissioner for Human Rights and the OSCE Representative on Freedom of the Media.

Media freedom and access to information

The Special Rapporteur is seriously concerned at the deterioration of media freedom in Turkey, which predates the coup attempt. The state of emergency cannot justify the adoption of disproportionate and arbitrary measures representing a severe blow to freedom of expression, media freedom and access to information in Turkey.

The Special Rapporteur urges the Government to immediately release journalists, writers, judges and academic who are detained pursuant to counter-terrorism legislation and emergency decrees. Nobody should be held in detention, investigated or prosecuted for expressing opinions that do not constitute an actual incitement to hatred or violence consistent with Article 20 and Article 19(3).

The Special Rapporteur urges the Government to adopt all appropriate measures to ensure that press and other media, and all individuals, are able to comment on public issues and to inform public opinion without censorship or constraint.

The Government must reverse its shutdowns of media outlets, including Internet media, networks and mobile telephony, and ensure that suspension of media outlets occur only in exceptional circumstances provided for by the law, and only in accordance with appropriate judicial procedures. Such measures should always be subject to judicial review.

Restrain the substantial restrictions on the internet

The Special Rapporteur calls on the Government to review the Internet Law and revise the broad authority to block and remove online content and to introduce less intrusive measures. The Special Rapporteur urges the Government to refrain from the excessive blocking and filtering of content and limit its requests for takedowns to actual cases of incitement meeting the requirements of Article 19(3) and Article 20 of the ICCPR.

Review of emergency decrees

The Government is obligated to ensure that any restriction on freedom of expression during the state of emergency is strictly proportionate to the exigency of the situation. The tests of necessity and proportionality are not suspended during a period of derogation linked with a state of emergency.

The Special Rapporteur urges the Government, with a view to ending the state of emergency, to reconsider whether the conditions at issue in July remain such as to justify its continuation. Regardless, he urges review and revision of the emergency decrees so as to ensure their consistency with international human rights norms and standards. In particular, persons deprived of their liberty pursuant to the emergency decrees must be entitled, in line with Article 9 of the ICCPR, to initiate proceedings before a court to challenge the lawfulness of their detention.

The Special Rapporteur urges the Government to ensure that anyone who has been victim of unlawful arrest, detention, or dismissal, or has any other legal claim, must have an enforceable right to review and remedy. Persons dismissed by virtue of emergency decree must be granted access to appropriate and independent judicial and administrative mechanisms to challenge the lawfulness of the decisions and to obtain adequate reparation.

Review of national legislation

National legislation on defamation and counter-terrorism ought to be brought in line with international standards. In particular, the Special Rapporteur urges the Government to review urgently the Anti-Terrorism Law so as to ensure that counter-terrorism measures are compatible with Article 19(3) of the ICCPR. Such offences as “encouragement of terrorism” and “extremist activity” as well as offences of “praising”, “glorifying”, or “justifying” terrorism, should be clearly defined to ensure that they do not continue to lead to unnecessary or disproportionate interference with freedom of expression.

The Special Rapporteur also calls on the Government to repeal articles 125(3) and 299 of the Penal Code, which criminalize the defamation of public officials and the President of the Republic. The mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties. The criminalization of individuals solely for criticism of government can never be considered to be a necessary restriction on freedom of expression. Even in the absence of repeal, the Special Rapporteur urges senior public officials to refrain from the harassing use of such tools to silence criticism in the name of “insult” of public authority.