Öner and Turk v Türkiye, Işıkırık v Türkiye, Altuğ Taner Akçam v Türkiye, Artun and Güvener v Türkiye and Nedim Şener v Türkiye groups of case
The Öner and Turk v Türkiye, Işıkırık v Türkiye, Altuğ Taner Akçam v Türkiye, Artun and Güvener v Türkiye and Nedim Şener v Türkiye groups of cases 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.
Hafiza Merkezi outlined the subject matter of the five groups and provided information on the legislative status of relevant provisions:
Öner and Türk group of cases
The Öner and Türk group concerns the unjustified conviction of the applicants for offences under the Anti-Terrorism Law (ATL) (mainly Article 6 § 2 - printing of statements made by a terrorist organisation - and Article 7 § 2 - propaganda in favour of an illegal organisation) or Articles 215 or 216 of the Criminal Code (praising an offence or an offender, or provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences).
Article 6 § 2 of ATL- printing of statements made by a terrorist organization
Amendment added in 2013: “condoning, praising or encouraging methods [using] coercion, violence or threats”
Article 7 § 2 of ATL - propaganda in favour of an illegal organisation
Amendment added in 2013: “by justifying, praising or encouraging the use of methods constituting coercion, violence or threats”
Amendment added in 2019: “Expressions of thought that do not exceed the limits of reporting or for the purpose of criticism shall not constitute a crime”
No new amendment, continuing violations
Article 215 of CC - praising an offence or an offender
Amendment added in 2013: “…provided that there emerges an imminent and clear danger to the public order”
No new information provided
Article 216 of CC - provoking the public to hatred, hostility, denigrating a section of the public on grounds of social class, race, religion, sect, gender or regional differences
No amendment
No information provided in the action plan
Article 6 § 1 of ATL - disclosing or publishing the identities of officials on counter-terrorism duties, or identifying such persons as targets
Ambiguous wording, increasing use against journalists and rights defenders
Previously examined before the ECtHR and the CM
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.
Article 220 § 6 of the CC - committing an offense on behalf of an organization without being a member
Hamit Yakut pilot judgment of the Constitutional Court (2021) – not implemented by the Parliament
Annulment by the Constitutional Court (2023) – comes into force on 8 April 2024
Legislative proposal (currently before Parliament) offers no change.
Article 220 § 7 of the CC - aiding and abetting an organization willingly and knowingly without belonging to its structure
Amendment added in 2013: “by justifying, praising or encouraging the use of methods constituting coercion, violence or threats”
The Constitutional Court found it meets the legality requirement
No new amendment foreseen.
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”.
Article 301 of the CC - publicly denigrating the Turkish nation or the organs and institutions of the state, including the judiciary and the army
Amended in 2008: denigrating “Turkish nation” instead of “Turkishness”, lower sentences + authorization from Ministry of Justice required for investigation
The ECtHR found the provision does not meet the “quality of law” requirement since “its unacceptably broad terms result in a lack of foreseeability as to its effects” (Altuğ Taner Akçam v. Turkey, § 95)
Despite calls from the CM, no new amendment since the Taner Akçam judgment
Artun and Güvener group of cases
The Artun and Güvener group concerns 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.). The Court included indications under Article 46 that the violation stemmed from a problem with the drafting and application of Article 299 which afforded the Head of State privileged status or special protection vis-à-vis the right to convey information and opinions concerning him, and held that bringing the relevant domestic law into line with Article 10 would constitute an appropriate form of redress making it possible to put an end to the violation.
Article 125 of the CC – insulting
No new amendment
Article 299 of the CC – insulting the President
No new amendment
Action plan argues that “no abolishment is required” and Ministry of Justice authorization required for prosecution functions as a filtering mechanism
latest CM decision calling for the abrogation of Article 299
Nedim Şener group of cases
The Nedim Şener group focuses on the pre-trial detention of individuals, mainly journalists, without relevant and sufficient reasons, on serious charges based on their publications or speech. In one case in the grouo, the Court found inter alia that the applicant’s pre-trial detention was unlawful, since the offence with which he was charged, namely the dissemination of propaganda in favour of an illegal terrorist organisation, had - wrongly - been considered one of the offences listed in Article 100 of the Code of Criminal Procedure for which the reasons justifying the detention were established by legal presumption.
Article 100 of the Code on Criminal Procedure (Grounds for arrest)
Pre-trial detention used as a punitive measure and no concrete evidence sought
Lower courts even find Article 100 insufficient
CM called for the judiciary to “rely on concrete evidence justifying strong suspicion when placing individuals in detention”.
The NGO set out their main concerns regarding the implementation of these cases:
“Expressions of thought that do not exceed the limits of reporting or for the purpose of criticism shall not constitute a crime” - similar phrases added over the years had no positive impact.
Broad wording of provisions and arbitrary conduct of the judiciary.
Troubling approach associating any dissenting opinion with terrorism.
Circumventing provisions
Non-implementation of Constitutional Court judgments
Individual applications
Annulment decisions – Parliament is reluctant to make required legislative changes in a Convention compliant manner
MLSA presented the findings in their 2023 Trial Monitoring Report 2023:
Öner and Türk v. Türkiye: Terrorism charges are still the primary charge against freedom of expression in Türkiye.
Terror charges are the most frequent charge in freedom of expression cases by making up for almost half of all the charges - 103 cases.
Terrorist propaganda (Anti Terror Law – 7§2) is the second crime most often prosecuted in the report – 46 cases (%15).
The government introduced amendments in 2019 to the article but courts are still failing to differentiate between terrorist propaganda and news content.
Terrorist organisation membership (7§1) are the main charge in 10% of all cases.
Targeting the individuals involved in counterterrorism (Anti Terrorism Law – 6§1) is being used to circumvent the other provisions reviewed by the committee. It was charged 12 times in last period.
Terrorist organization membership (Anti Terrorism Law – 7§1) is being used to circumvent the other provisions reviewed by the Committee.
Evidence used in connection to these charges are mostly composed of news articles and social media posts.
It was used in almost 10 % of all freedom of expression cases.
In total, in 3 cases, 5 defendants were sentenced to 31 years, 3 months and 9 days in total.
Işıkırık v. Türkiye: Annulled Article 220/6 of TPC is being reinstated and circumvented by Article 220/7.
Article 220/6 of TPC: committing a crime on behalf of a criminal organization without being a member
In one case, four journalists were sentenced to 11 years due to this charge
Article 220/7 of TPC: willingly aiding a criminal organization
In two freedom of expression cases, 32 defendants were sentenced to almost 103 years imprisonment on this charge.
Nedim Şener v. Türkiye: Detention is used as a punishment mechanism in freedom of expression cases.
Number of detained journalists is misleading without context
Compared to last year the detained defendants increased by 150%
Journalist Dicle Müftüoğlu was imprisoned since April 2023 until February 2024 without her lawyer being allowed to make a defense statement in the first hearing. Her case was only composed of her journalistic activities. No evidence was produced during her detention.
18 Journalists in Diyarbakır have been detained in June 2022, without an indictment being filed for 9 months. They were released after 13 months of detention.
MLSA and Hafiza Merkezi provided their Recommendations to the Committee of Ministers to:
Continue to examine the execution of the judgments in these case groups regularly and under enhanced procedure;
Examine and address the increasing use of interchangeable criminal provisions;
Instruct the Secretariat to draft an interim decision if no tangible progress is made or detailed statistics are not provided by the next review.
The NGOs called on Turkey to:
Amend its definition of terrorism in the Anti-Terrorism Law in a way that is narrowly construed and compliant with Convention standards;
Repeal or substantially amend Articles 125, 215, 216, 314 of the Criminal Code, and Articles 6 and 7 of Anti-Terrorism Law, particularly by addressing their overbroad, vague, and unforeseeable wording;
Abolish Articles 220 § 6, 220 § 7, 299 and 301 of the Criminal Code which fail to fulfill the legality criteria, and closely monitor the legal proposals on Article 220 § 6 as the Committee of Ministers;
Submit detailed and separate statistical information covering last 5 years of the application of different Articles causing freedom of expression violations;
Take tangible steps to ensure that the Anti-Terrorism Law and the Criminal Code are not interpreted in a broad manner by the judiciary, that pre-trial detention decisions are not used as a punitive measure, and that Constitutional Court judgements are promptly implemented by all judicial and administrative bodies;
Stop targeting, harassing and intimidating journalists and HRDs by subjecting them to judicial and administrative measures.
See slides for full briefing.
Relevant Documents:
NGO Communications
CM Decisions