EIN Civil Society Briefing February 2023: Turkey, Hungary, and Bulgaria

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On the 27th February 2023, EIN held the latest civil society briefing for permanent Representations of the Council of Europe, ahead of the 1459th Committee of Ministers Human Rights Meeting on 7th – 9th March 2023. The event was held in person in Strasbourg.

The Briefing focused on the following cases:

  1. The Oya Ataman v Turkey case concerns the violation of the right to freedom of assembly, ill treatment of applicants as a result of excessive force used during demonstrations. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at Media and Law Studies Association and Beril Onder, Project Lawyer at the Turkey Human Rights Litigation Support Project.

  2. Baka v Hungary case concerns lack of access to a court as regards the premature termination of the applicant’s mandate as President of the Supreme Court which also led to a violation of his right to freedom of expression. This presentation was given by Erika Farkas, Legal Officer at the Hungarian Helsinki Committee.

  3. The Stanev v Bulgaria case concerns the applicant’s unlawful placement in a social care home for persons with mental disabilities; lack of judicial review and poor living conditions and the impossibility to request the restoration of his legal capacity. This presentation was given by Simona Florescu, Litigation Manager at Validity, and Aneta Mircheva, Lawyer at the Network of Independent Experts.

  4. The freedom of expression cases (Öner and Türk v Turkey/ Nedim Sener group/Altug Tanar Akcam group/Artun and Guvener group/ Isikirik Group) which specifically concerns the unjustified interferences with freedom of expression, in particular through criminal proceedings, including defamation, and the consequent chilling effect. Unforeseeable conviction of membership of an illegal organisation for the mere fact of attending a public meeting and expressing views there. This presentation was given by Mümtaz Murat Kök, Project Coordinator and Editor at the Media and Law Studies Association.

Oya Ataman v Turkey

The Oya Ataman v Turkey case concerns violations of the right to freedom of peaceful assembly, including the prosecution of participants and/or the use of excessive force to disperse peaceful demonstrations. Certain cases also concern unjustified detention orders against the participants, failure to carry out effective investigations into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 5, 10, 11 and 13 of the Convention).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided participants with an update on legislative developments that they included in their Rule 9 Submissions:

Law No.2911 on Demonstrations and Public Meetings

  • Law No. 2911 allows local authorities to: 

    • impose unwarranted restrictions on the right of peaceful assembly;

    • impose blanket bans on all demonstrations and events; 

    • enforce dispersal and impose criminal and administrative sanctions against those who attempt to exercise their right to peaceful assembly.

  • Lack of any comprehensive legislative measures in fully aligning Law 2911 with Convention standards.

  • The amendments made between 2014-2018 to Law No. 2911 have already been examined by the CM in its previous meetings: they are not Convention-compliant.

    Additional restrictions in the aftermath of state of emergency

  • After the attempted coup d’état of 15 July 2016, under the state of emergency, Article 11 of Law No. 2935 on the state of emergency granted broad powers to governors, restricting the freedom of assembly and movement along with other freedoms, which significantly affected civil society activities.

  • Severe restrictions such as blanket bans on peaceful assemblies were frequently imposed.

  • Although the State of emergency formally ended on 18 July 2018, serious restrictions placed under the emergency regime were incorporated into permanent legislation.

  • On 25 July 2018, Law No. 7145 (an ‘omnibus law’) introduced emergency-type restrictive measures into several ordinary laws.

    • Amendments to Articles 6 and 7 of Law no. 2911

    • An amendment to Article 11 (C) of Law No. 5442 on Provincial Administration allows (allowing provincial governors to ban the entry or exit of individuals to their provinces for fifteen days).

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project gave participants an update on recent developments concerning the authorities application and interpretation of domestic law:

Blanket and specific bans on demonstrations and events

    • Under Law No. 2911 and Law No. 5442, provincial governors have regularly imposed bans on demonstrations and events in many provinces

    • Some governors automatically extended an existing ban by imposing another ban at the end of the previous one, creating an uninterrupted ban for a period much longer than 30 days.

    • In the Eastern city of Van, a general ban on all public gatherings and events was first imposed on November 21, 2016, and with the additional bans introduced by the authorities, all public gatherings and events were banned uninterruptedly until 27 June 2022.

Police interventions with excessive use of force

  • The examination of Turkish law enforcement officials’ practices during assemblies reveals, in particular, the following:

    • The police systematically enforce the dispersal of assemblies despite their peaceful nature.

    • While dispersing the crowd, the police persistently use excessive force on protestors, which could result in ill-treatment or torture, and mass arrest.

    • The authorities have failed to set up a functioning system for an ex post facto review to assess the reasonableness and proportionality of use of force on protestors.

Criminalisation of peaceful protestors

  • The widespread and systematic use of Law no. 2911 and 5442 against peaceful protestors

    • Criminal sanctions under Law no 2911

    • Misdemeanour fines under Law no. 5326.

    • Large number of criminal investigations and prosecutions under Law no. 2911

  • Peaceful protestors may also easily face other charges under criminal law

    • Article 265 § 1  of the Criminal Code for obstructing the security forces in the execution of their duties by way of resistance together with other persons

    • Article 299 of the Criminal Code for insulting the President of the Republic because of the slogans chanted during assemblies

    • Prevention of Terrorism Act (Law no. 3713

Media and Law Studies Association also provided trial monitoring data and information on criminal proceedings in the context of freedom of assembly. Between 1 September 2021 and 20 June 2022, at least 800 people stood trial for “defying the Law no. 2911 on Demonstrations and Assemblies” in 39 different trials, as recorded through trial monitoring by MLSA.

The majority of these people stood trial for “attending illegal demonstrations and marches and failing to disperse despite being warned and despite the use of force (Article 32/1 of the Law no. 2911).”

They set out examples of repressed assemblies in the Istanbul and Eskişehir Pride Marches, as well as the Saturday Mothers protests.

Media and Law Studies Association and the Turkey Human Rights Litigation Support Project provided their recommendations on general measures, asking the Committee of Ministers to:

  • Continue the supervision on the execution of the Oya Ataman group of cases under the enhanced procedure and at more frequent intervals;

  • Urge Türkiye to revise its Action Plan and address in full the structural problems arising from the domestic legislative framework identified by the ECtHR in the Oya Ataman group; 

  • Call on Türkiye to amend Law No. 2911 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; 

  • Call on Türkiye to amend Law No. 5442 to ensure that its provisions are fully in line with the principles set  out in the case law of the ECtHR; in particular, amend Article 11(C) which grants broad  powers to governors to ban both peaceful public assemblies and indoor human rights  events;

  • Call on Türkiye to review the 2016 Directive on the use of tear gas and other crowd control weapons to  ensure that it complies in all respects with international standards in relation to the use  of crowd control weapons;

  • Call on Türkiye to put in place an effective ex post facto review mechanism to assess the reasonableness and proportionality of any use of excessive force by law enforcement  officials;

  • Call on Türkiye to stop the criminalization of the members of civil society who exercise their right to freedom of peaceful assembly.

Please see the slides for the full Briefing.

Relevant Documents:

The Baka v Hungary case concerns the premature termination of the applicant’s term of office as President of the Supreme Court, which was found to have violated his right of access to a court as guaranteed by Article 6 § 1 because of the absence of judicial review. The Court found that these measures had been prompted by the views and criticisms expressed by the applicant on issues of public interest (planned major reform of the judicial system) and had violated Article 10 as they had not pursued any legitimate aim linked to the judicial reform at issue, nor had the measures been necessary in a democratic society.

Hungarian Helsinki Committee reminded participants of the key violations found by the ECtHR:

  • Violation of Article 6 ~ undue and premature termination of Judge Baka’s mandate as President of the Supreme Court through ad hominem legislative acts of constitutional rank and therefore beyond judicial control.

  • Violation of Article 10 ~ prompted by views and criticisms he expressed on reforms affecting the judiciary.

  • Exerting a ’chilling effect’ on other judges discouraging them from participating in public debate on legislative reforms affecting the judiciary and on issues concerning the independence of the judiciary.

Hungarian Helsinki Committee provided participants with further developments of this pending case by highlighting it’s impacts on authorities’ systemic undermining and the chilling effect of silencing the judiciary. In 2022, two massive smear campaigns were targeted against individual judges as members of the National Judicial Council:

  • Against Judge Vasvári (spokesperson of the NJC), following a public statement in ‘The Guardian’ stating that „we have been witnessing external and internal influence attempts” and that „we just want a transparent and meritocratic system”. Following these statements, a defamatory campaign in the governmental propaganda media ran for one week describing him as „blood judge”; „judge of terror”, and depicting the NJC as „a putty club”.

  • Against Judge Vasvári (spokesperson of the NJC) & judge Matusik (international rep.)

  • massive smear campaign for over a month & more than 450 publications

  • consciously built up and boosted

    • launched in an anonymous blog of the right-wing media

    • joined by pro-government think tanks

    • discrediting members of the NJC as judges

    • questioning their independence 

Hungarian Helsinki Committee provided recommendations to the CM for Hungarian authorities, who should:

  • evaluate domestic legislation with respect to guarantees and safeguards protecting judges from undue interference

  • address the issue of judicial independence holistically and comprehensively

  • refrain from and condemn any public harassment, intimidation or retaliation against judges, and provide effective protection from personal attacks against judges

  • abstain from any public critique, recommendation, suggestion or solicitation regarding court decisions that may constitute direct or indirect influence on pending court proceedings or otherwise undermine the independence of individual judges in their decision-making

Please see the slides for the full Briefing.

Relevant Documents:

The Stanev v Bulgaria case concerns the unlawful placement of the applicant, suffering from a mental health disorder, in a social care home (violation of Article 5 § 1(e)). The Court found that the placement, considered a social assistance measure, did not comply with the requirements of the domestic legislation because the authorities had not requested the consent of the applicant. The placement also did not comply with the conditions set in the case law of the Court regarding the detention of persons suffering from mental health disorders.

Validity outlined the ECtHR judgment and the implementation process of the case to participants, in addition, they highlighted the need for alternatives to residential care.

The NGOs argued that small group homes and family-type homes perpetuate institutionalization, by ensuring the repetition of the same patterns of violence, neglect and deprivation of rights for persons with disabilities, and by maintaining the same features of institutions.

The NGOs provided an example of violence in a family-type home: https://novini.bg/bylgariya/obshtestvo/465247

They argue that the CM is empowered to monitor small group homes (relevant for both Article 3 and Article 5) and that, under the Stanev judgment, the state should provide for viable alternatives to residential care. This is the only path forward for implementing the Stanev judgment in a manner that is human rights compliant, and does not perpetuate institutionalization.

The current situation in Bulgaria

  • Around 9 000 people with disabilities still living in big institutions (159 big institutions still are operating).

  • 271 small group homes

  • Waiting list – 1 580 people with disabilities are in the waiting list for placement in the residential care, because of lack of another possibility to receive care in the community.

  • The group homes are small institutions. The regime there becomes more and more restrictive.

The NGOs argue that it is imperative that the Committee continues to monitor the implementation of the judgment. They set out recommendations to the Committee of Ministers to request the Bulgarian authorities to:

  1. Develop and implement strategies to ensure that persons with disabilities in family-type homes have a path to live in the community; they have access to a complaint procedure and review of their placement;

  2. Provide data on the number of persons with disabilities having left residential care to live in the community;

  3. Make procedural accommodations to ensure that persons with disabilities participate in court proceedings;

  4. Ensure that procedural accommodations and information are provided before and at signing the contracts for placement in family-type homes.

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

1459th meeting (March 2023) (DH) - Rules 9.2 and 9.6 - Communication from 8 NGOs (23/01/2023) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (03/02/2023) [anglais uniquement] [DH-DD(2023)139-rev]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation – Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) [anglais uniquement] [DH-DD(2022)547]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation – Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (10/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) and reply from the authorities (25/05/2022) [anglais uniquement] [DH-DD(2022)547-rev]

1436th meeting (June 2022) (DH) - Rule 9.2 - Communication from NGOs (Validity Foundation - Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee and Bulgarian Lawyers for Human Rights) (02/05/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (12/05/2022) [anglais uniquement] [DH-DD(2022)531]

1436th meeting (June 2022) (DH) - Rules 9.2 and 9.6 - Communication from NGOs (Validity Foundation Mental Disability Advocacy Centre, KERA Foundation, Network of Independent Experts, Bulgarian Helsinki Committee & Bulgarian Lawyers for Human Rights) (25/04/2022) in the case of STANEV v. Bulgaria (Application No. 36760/06) & reply from the authorities (04/05/2022) [anglais uniquement] [DH-DD(2022)495-rev]

Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group

The freedom of expression groups of cases (Öner and Türk v Turkey group/ Nedim Sener group/ Altug Tanar Akcam group/ Artun and Guvener group/ Isikirik Group) concern unjustified and disproportionate interferences with the applicants’ freedom of expression on account of criminal proceedings for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole (violations of Article 10).

Media and Law Studies Association updated the participants with recent developments of each case within the group of cases:

1.     Öner and Türk Group of Cases

The Öner and Türk group concerns unjustified convictions of the applicants mainly based on Article 6 § 2 (printing of statements made by a terrorist organisation) and Article 7 § 2 (propaganda in favour of an illegal organisation) of the Anti-Terrorism Law; Article 215 (praising an offence or an offender) and Article 216 (provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences) of the Criminal Code (violations of Article 10).

Article 6/2 of Anti-Terror Law : Printing or publishing declarations or announcements of terrorist organizations:

  • In its entirety, Article 6 of Anti-Terror Law continues to be a source of violations. 

  • Despite the claims of the authorities, the trials based on Article 6/2 of Anti-Terror Law continue and they constituted 1,7% of the charges during the monitoring period.

  • Prolonged trials and violations of the right to fair trial

    Article 6/1 of Anti-Terror Law:  Disclosing or publishing the identity of officials on anti-terrorist duties, or identifying such persons as targets

  • The ambiguous wording of Article 6/1 makes it possible for any public official (even retired ones) to be defined as “an official on anti-terrorist duties.”

    Article 7/2 of Anti- Terror Law: Propaganda in favor of an illegal organization)

  • Amended in 2013 → «the interpretation has been narrowed down the act of making propaganda for a terrorist organization by justifying, praising or inciting its methods, is not recognized as an offense if it does not contain violence, force or threat.»

  • A sentence added in 2019 → «expressions of opinion constituting criticism or not exceeding the limits of reporting, will not constitute a crime.»

  • Article7/2 charges, which were among the charges leveled against individuals in 62 cases, constituted 54% of the terrorism-related charges in this period. In 46 of these trials, journalists were the defendants.

  • Amendments and especially the 2019 addition to the article in no way protect the freedom of criticism or the press.

    Article 215 of the Turkish Penal Code: Praising an offense or an offender

  • The 2013 amendment to the Article 215 of the Turkish Penal Code has not solved the problems with the article and most importantly the problem of “unforeseeability” the Court had found in the case Yasin Özdemir v. Turkey. Individuals can still be charged and sentenced for their expressions which do not pose “an imminent and clear danger to public order.”

  • The lawsuit brought against journalist Cengiz Çandar and activist Kemal Işıktaş proves this point.

  • Indictment filed in 2020 cited social media posts shared in 2017 as evidence for the charges.

Article 216 of the Turkish Penal Code: Provoking the public to hatred, hostility, denigrating a section of the public

  • In their latest action plan, the authorities failed to inform the Committee about the progress or more appropriately the lack of progress regarding Article 216 of the Turkish Penal Code.

  • The article, however, is used more and more to stifle freedom of expression.

  • Examples of popstar Gülşen and journalist Mehmet Güleş demonstrate such tendency.

2.     Nedim Şener Group of Cases

The Nedim Şener group of cases concerns pre-trial detention of journalists on serious charges (offenses against the constitutional order and its functioning and establishing organizations for the purpose of committing crimes) and as per Article 100 of Code of Criminal Procedure.

  • There has been no amendment, no progress

  • Currently at least 61 journalists in prison. 26 out of 61 are in pre-trial detention.

  • Over the past 9 months, 26 journalists have been arrested over the suspicion of «membership in a terrorist organization (Article 314 of TPC and Article 7-1 of ATL)

    • On 16 June 2022, 16 journalists arrested in Diyarbakır

    • On 29 October 2022, 9 journalists arrested in Ankara

    • On 10 January 2023, journalist Sezgin Kartal arrested in Istanbul 

3.     Altuğ Taner Akçam Group of Cases

The Altuğ Taner Akçam group deals with prosecutions under Article 301 of the Criminal Code (publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army), which the Court found not to meet the “quality of law” requirement in view of its “unacceptably broad terms” (violations of Article 10).

Article 301 of the Turkish Penal Code

  • Contrary to the claims of the authorities, the 2008 amendment to the Article 301 has not solved the problems and thus the article continues to be a source of further violations.

  • During the monitoring period 25 people, including lawyers, journalists and politicians stood trial on this charge.

  • Continuous legal harassment of the Diyarbakır Bar Association

4.     Artun and Güvener Group of Cases

The Artun and Güvener group concerns unjustified interferences with the applicants’ right to freedom of expression on account of their criminal convictions for insulting public institutions, officials and the President under Articles 125 and 299 of the Criminal Code (the President, the Republic, police officers, tax inspectors etc.) (violations of Article 10). In the case of Vedat Sorli, the Court also indicated under Article 46 that bringing the relevant domestic law into line with the Convention would be an appropriate form of redress that would put an end to the violation found.

a.     Article 125 of the Turkish Penal Code: insulting

  • No amendment

  • 2005 amendment amended two clauses of the article : (4-openly insulting) and (5- insulting public officials working as a committee). Both increase the stipulated prison sentence.

  • There is no “Convention compliant attitude” when it comes to the application of Article 125.

  • 73 people, including journalists, lawyers, activists and politicians stood trial on these charges. The majority of the insult charges were “insulting a public official. (Article 125/3a)”

  • 2 years and 7 months prison sentence imposed upon the Istanbul Mayor Ekrem İmamoğlu for “insulting public officials who work as part of a committee because of their duties. (Article 125/5).”

b.     Article 299 of the Turkish Penal Code: insulting the president

  • No amendment → The authorities claim that the requirement of the Ministry of Justice authorization for prosecution (NOT investigation) («filtering mechanism») has «eliminated the concerns.». However, the 2005 amendment amended the second clause of the article (2- openly) and increased the stipulated prison sentence.

  • Contrary to the claims of the authorities that all the concerns regarding Article 299 have been eliminated through a “filtering measure” and Convention compliant case law, the article is applied in absolute defiance of the Vedat Şorli judgment of the court to punish criticism and stifle freedom of expression.

  • Furthermore, Article 299 of the Turkish Penal Code increasingly gives way to Article 5 violations as it can be seen in the examples of journalist Sedef Kabaş ; a 70 years old man who shared her remarks and Cihan Kolivar, the president of the Turkish Union of Bread Producers.

5.     Işıkırık Group of Cases

The Işıkırık group concerns Article 220 §§ 6 and 7 of the Criminal Code, which provide that anyone who commits a crime on behalf of an illegal organisation or who knowingly and willingly aids and abets an illegal organisation shall be sentenced as a member of that organisation. Based on these provisions, most of the applicants in this group of cases were sentenced to several years of imprisonment for membership of an illegal organisation for having, for example, peacefully participated in a demonstration called for by an illegal organisation, or expressed a positive opinion about such an organisation, without the prosecution having to prove the elements of actual membership. The Court criticised in particular the wording of the provisions and their extensive interpretation by domestic courts which did not provide sufficient protection against arbitrary interferences by the public authorities (§67) and therefore lacked foreseeability and had a chilling effect (violations of Articles 10 and 11).

a.     Article 220/6 of the Turkish Penal Code: Committing an offense on behalf of an organization without being a member

  • The sentence added to the Article 220/6 in 2013 has not narrowed down the interpretation and application of the article.

  • Furthermore, the article continues to be a source violation with regards to Article 11 and also criminalizes both peaceful demonstrations and journalists covering those demonstrations.

b.     Article 220/7 of the Turkish Penal Code: Aiding and abetting an organization willingly and knowingly without belonging to its structure

  •  Contrary to the claims of the authorities, the problems with Article 220/7 have not been eliminated and the article continues to be a source of violations.

  • During the monitoring period, 58 activists, 38 journalists and 13 politicians were tried on Article 220/7 charges.

  • Furthermore, 5 journalists and a media employee were sentenced for “aiding and abetting an organization willingly and knowingly without belonging to its structure.”

Media and Law Studies Association provided recommendations to the Committee of Ministers to:

  • Re-examine these groups of cases more frequently.

  • Request the authorities to revise their action plan so that they address structural problems arising from the legislative frameworks as identified by the ECtHR in these groups of cases.

  • Reiterate demands for amendments to Article 125 and 301 of the Turkish Penal Code and the abolition of Articles 220/6, 220/7 and 299 of the Turkish Penal Code. 

  • Urge the authorities to consider amending Article 6 of Anti-Terror Law so that it cannot be employed to intimidate investigative journalism.

  • Persistently request the authorities to provide up-to-date and detailed statistics on criminal investigations and prosecutions related to freedom of expression and the press, and to provide comments on these statistics.

  • Reiterate calls for strong high-level political messages from the authorities. 

  • Considering the absence of progress in the implementation of these groups of cases, as well as the repeated and extensive use of these legal provisions in order to target journalists, media employees and other persons exercising freedom of speech, the Chair of the Committee should send a letter to the Minister of Justice of Turkey regarding the non-implementation of these groups of cases.

Please see the slides for the full Briefing.

Relevant Documents: