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CoE calls on Turkey to amend criminal and anti-terrorism laws, release political prisoners

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The Committee of Ministers of the Council of Europe (CoE), which monitors the enforcement of judgments of the European Court of Human Rights (ECtHR), called on Turkey to significantly reform its criminal and anti-terrorism laws and urgently release political prisoners, in its annual monitoring report, published on Thursday,.

Despite a slight reduction in the backlog of cases awaiting enforcement, the committee emphasized that Turkey continues to struggle with issues of freedom of expression and assembly, the independence of the judiciary and the pervasive problem of detention without clear justification.

The report indicates that a significant number of cases have remained unresolved for more than five years.

The backlog of pending cases concerning Turkey dropped from 480 in 2022 to 446 in 2023. Nevertheless, concerns remain regarding cases of freedom of assembly, detention without sufficient grounds and domestic violence, among others.

In 2023 the ECtHR referred 78 cases against Turkey to the Committee of Ministers to monitor their implementation. This number represents a slight increase from the 77 cases from 2022 and a decrease from the 106 cases from 2021. At the end of 2023, 446 cases were pending execution in Turkey, a slight decrease from 480 cases in 2022 and 510 cases in 2021.

Among these pending cases were 35 leading cases that fell under an extended procedure and highlighted issues such as freedom of expression and assembly, independence of the judiciary and domestic violence.

Imprisonment of Osman Kavala

The committee made reference to the continued detention of Osman Kavala in Turkey, despite international calls for his release. The case of Kavala v. Türkiye remains a central point of contention as businessman and philanthropist Osman Kavala has been detained since October 2017.

Kavala, 66, faces charges that have ranged from espionage and financing anti-government protests in 2013 to taking part in a failed coup against Turkish President Recep Tayyip Erdoğan in 2016.

He was arrested in 2017 and sentenced to life in prison in 2022 for allegedly trying to topple Erdoğan’s government by organizing the Gezi Park protests, which erupted in the summer of 2013 in opposition to government plans to destroy a park in central İstanbul.

The ECtHR judgment in his case in December 2019 found his detention to be arbitrary, politically motivated and in pursuance of an “ulterior motive,” that of silencing him as a human rights defender.

The non-implementation of the 2019 ruling prompted the committee to launch an infringement procedure against Turkey in February 2022.

The infringement proceedings judgment of July 11, 2022 held that the “finding of a violation of Article 18 [limitation on use of restrictions on rights] taken together with Article 5 [right to liberty and security] in the Kavala judgment [in 2019] had vitiated any action resulting from the charges related to the Gezi park events and the attempted coup.”

In October the Parliamentary Assembly of the Council of Europe (PACE) also adopted a resolution urging Turkey to comply with the judgments of the ECtHR and calling for Kavala’s immediate release.

In a statement in March the committee declared Turkey in “serious breach” of the convention and rule of law principles due to the ongoing detention of Kavala.

The Turkish judiciary faces widespread criticism for its perceived lack of independence. Critics accuse President Erdoğan of exerting control over the judiciary and establishing one-man rule in the country, particularly after a coup attempt in 2016, following which he launched a massive crackdown on non-loyalist citizens and the country’s subsequent transition to a presidential system of governance, which granted him vast powers.

Many say there is no longer a separation of powers in the country and that members of the judiciary are under the control of the government and cannot make judgments based on the law.

In a development that validated the critics, Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October, dropping one rank in comparison to last year.

Demirtaş and Yüksekdağ

In addition to the Kavala case, the committee also addressed the continued detention of Kurdish political leaders Selahattin Demirtaş and Figen Yüksekdağ and has examined their cases in detail throughout 2023. Despite previous judgments of the ECtHR finding violations of their rights through the lifting of parliamentary immunity and unjustified detention, both individuals remain in prison.

The committee expressed its serious concern about the excessive delay in the Turkish Constitutional Court’s handling of Demirtaş’s appeal and urged expedited review procedures that respect the court’s findings.

The committee called for the immediate release of Demirtaş and Yüksekdağ and suggested that Turkey consider alternatives to detention pending judicial review. It emphasized the need for legislative reforms and advocated measures to protect political expression and guarantee parliamentary immunity. The committee called on Turkey to work with the CoE, in particular the Venice Commission, to address the problems identified.

The committee also scrutinized Turkey’s handling of the right to freedom of expression, in particular with regard to criminal proceedings against journalists. It called on Turkey to clearly state in its laws that the exercise of freedom of expression does not constitute a crime, and in particular to address issues of incitement to violence.

ECtHR’s landmark ruling

The report also addressed structural problems within the Turkish judiciary, referring to the landmark Yüksel Yalçınkaya judgment, under the heading of judgments “with indications of relevance for the execution (under Article 46) which became final in 2023.”

In the case known as the Yalçınkaya ruling, the ECtHR described the Turkish courts’ use of a mobile messaging application as evidence of terrorism as unlawful, calling on the authorities to come up with a remedy for the problem, which it said was systemic.

Known as ByLock, the mobile application was at the center of the trials of thousands of people whose cases are pending before domestic courts or the ECtHR.

Legal experts say the Yalçınkaya ruling will go down in history as one of the most significant judgments in the history of the European human rights court.

It concerns tens of thousands of people who faced unfair trials on terrorism charges due to their alleged links to the Gülen movement, a faith-based group inspired by US-based Turkish cleric Fethullah Gülen.

The group is deemed a terrorist organization by Ankara and is accused of orchestrating a failed 2016 coup in the country. The movement denies any involvement in the coup or terrorist activities.

The justice minister announced in August that 15,050 people remained in prison on Gülen movement membership charges.

According to a report by Human Rights Watch, in 2023 Turkey’s National Intelligence Organization (MİT) continued the practice of abducting individuals associated with the Gülen movement in collaboration with countries with weak rule of law frameworks.

The report noted two cases in July and September when Tajik authorities bypassed the legal extradition process in abducting Emsal Koç and Koray Vural before they were flown to Turkey, where they were put in pretrial detention.

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