Protesting as a Terrorist Offense: The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey
In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their “crime” was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law. In July 2010, as this report was being finalized, the government passed legal amendments to improve the treatment of child demonstrators; but this report focuses mainly on adult demonstrators, whose treatment remains harsh, disproportionate and ultimately violates several human rights norms.
The vast majority of demonstrators currently being prosecuted under terrorism laws is Kurdish, and the laws are usually invoked in the mainly Kurdish-populated areas of southeast Turkey, or in Adana and Mersin and other cities with large Kurdish populations. People whose writings and commentary on “the Kurdish question” in Turkey support positions perceived to be similar to those of the outlawed armed Kurdistan Workers’ Party (PKK) have long faced particularly harsh punishment under Turkish law. Now the courts are applying the same or even harsher punishments to regular people who take to the streets to demonstrate support for opinions the authorities perceive to be similar to those of the PKK. While many of the prosecutions discussed in this report involve allegations of stonethrowing or tire-burning at demonstrations, the government’s increasingly harsh punishment of Kurdish demonstrators does not appear to be a response to demonstrators’ violent acts, but rather to their perceived ideological support for the PKK. The present laws fall foul of the standards required by human rights law and the rule of law that criminal offenses must be defined precisely and in a foreseeable manner (the requirement of legality). Their application in the manner documented in this report amounts to an arbitrary use of criminal law in violation of international human rights standards and the rule of law. The laws also offend against international law as they criminalize the legitimate exercise of freedom of opinion, expression, and assembly. The imposition of aggravated punishment under the Anti-Terror Law because an individual expresses a political opinion, as opposed to the gravity of the unlawful activity, violates international human rights law.
Official statistics are not available for the number of adults and children convicted under terrorism laws and sentenced to prison for participating in demonstrations, but Human Rights Watch estimates that the figure runs into many hundreds. Anecdotal evidence from interviews with lawyers suggests that the numbers have been increasing in the past two years, since an important legal decision on the issue in 2008...
II. Background / 9 Conflict and Kurdish Rights in Southeast Turkey / 9 Minority Rights in Turkey / 10 The AKP Government’s “Democratic Opening” and Minority Rights / 12
III. A Culture of Political Protest / 15
IV. Terrorism laws and Demonstrators / 19 Terrorism Offenses in the 2005 Turkish Penal Code and the 2006 Revisions to the Anti-Terror Law / 19 The Case Law on Articles 220/6 and 314/2-3: The Felat Özer Case / 23 Background to the Özer Case: The Diyarbakir Protests of March 28 to 30, 2006 / 23 The General Criminal Board of the Court of Cassation Decision in the Özer Case / 25 Legal Amendments in July 2010 Concerning Child Demonstrators / 29 Statistics on Prosecutions of Child Demonstrators under Terrorism Laws / 33 Lack of Detailed Statistics on Prosecutions of Demonstrators under Terrorism Laws / 35
V. Restricting the Rights to Freedom of Assembly and Expression / 36 Case of Veysi Kaya / 36 Case of Murat Işıkırık / 38 Case of Mehmet Kocakaya and Others / 39 Case of Three Dicle University Students Campaigning for the Right to Mother Tongue Education / 40 Cases of Vesile Tadik, Medeni Aydın, and Selahattin Erden / 42 Case of Rihan Yıldız / 45
VI. Stone-Throwing Equated with PKK Membership: Disproportionate Charges and Sentences / 47 Case of Feyzi Aslan, Fatma Gökhan, and Tufan Yıldırım / 47 Case of H.A. / 48 Case of B.S. / 49
VII. Convictions Based Solely on Police Identification / 52 Case of Murat Baran / 52 Case of Abdulcelil Karaş / 53 Case of Salih Özbek, Seyithan Akbal and Others / 53 Case of Ramazan Uçgün and İdris Üzen / 54 Case of M.Ö. and İ.S. / 55
VIII. Human Rights Violations / 58 Freedom of Expression and Assembly / 58 Principles of Legality, Fair Trial and Due Process / 60 UN Special Rapporteur’s Concerns about Vaguely Worded Terrorism Laws / 62
IX. Specific Concerns Related to Prosecution of Child Demonstrators / 64 Pre-trial Detention of Children / 64 III-Treatment and Procedural Irregularities in the Handling of Child Suspects / 66
X. Recommendations / 69 To the Turkish Government / 69 To the Judiciary / 70 To the Police and Prosecuting Authorities / 70 To Turkey’s International Partners, including the European Union and the United States / 71
Appendix: Translations of Relevant Articles: 2005 Turkish Penal Code and 2006 Revision to the Anti-Terror Law / 72
Acknowledgments / 74
Conflict and Kurdish Rights in Southeast Turkey
For the past 25 years, the Turkish military and the Kurdistan Workers’ Party (PKK) have been locked in conflict in the southeast and eastern provinces of the country. The fighting has killed an estimated 44,000 people: soldiers, PKK members, and civilians. During the 1990s, human rights groups documented gross violations of human rights by both the Turkish security forces and the PKK. There were thousands of enforced disappearances and unresolved killings suspected to have been carried out by state perpetrators. A state policy of burning down villages, ostensibly to prevent them from being used as PKK bases, led to the displacement of 950,000 to 1.2 million people.4 State agents conducted torture on a mass scale, and both state forces and the PKK attacked civilians.
For many years, much of the southeast and eastern regions were governed by emergency laws, which severely curtailed the rights to assembly, association, and expression. Fighting lessened after the 1999 capture of PKK leader Abdullah Öcalan and the PKK’s announcement of a ceasefire. Yet violence escalated again at various times from 2004 to mid-2010, typically taking the form of armed clashes between the military and the PKK in remote mountainous regions away from population centers. The PKK, or groups affiliated with it, have occasionally launched attacks on civilian targets in cities and holiday resorts. Most recently, since May 2010, the PKK has carried out a series of deadly attacks on military and police targets.
Over the last decade, the Justice and Development Party government (which has served two terms between November 2002 and the present), and the coalition government that preceded it, undertook important reforms to advance fundamental rights and freedoms. However, the conflict has had a profound impact on the way legislation has been drafted in this era, and has also influenced the way courts have interpreted laws. The lawmakers who amended the Penal Code and Anti-Terror Law, and the courts, most notably the Court of Cassation, have focused primarily on measures to enhance security, often at the expense of human rights. The pattern of prosecutions and convictions addressed in this report is a direct legacy of the conflict: vague and overly broad laws, and harsh, potentially discriminatory, implementation of those laws by Turkey’s Court of Cassation.
While the previous AKP government (November 2002-July 2007) introduced many legal reforms, countless laws continue to affect Kurds and other minority groups disproportionately, restricting their right to use their mother tongue in public life, to organize politically on the basis of their ethnic or religious identities, and to enjoy other cultural rights. Until recently, Turkish government and state officials viewed the Kurdish question solely as about the PKK, a problem of security and territorial integrity. They did not focus on or attempt to address the roots of the problem. The history of minority rights in Turkey and of Kurdish rights in particular has been extensively surveyed elsewhere, and the following section gives only a brief overview.
Protesting as a Terrorist Offense The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey
