Reforming the Judiciary . . . And What About the Students?

The government is planning a judicial reform package to address criticisms it is facing at home and abroad as to lengthy detention times (the time prisoners are held before they are even formally arrested, let alone indicted and then tried) and the investigation and imprisonment of journalists accused of either being terrorists and/or propagating terrorism through their writing. The bill is indubitably in part a response to the large number of ruling against Turkey by the European Court of Human Rights.

Justice Minister Sadullah Ergin announced the package at a press conference on Jan. 18, and typical of such massive overhauls, the government contains numerous provisions, all more or less related to the actual goal of addressing the problem, and which make the law, much more its actual impact, incredibly difficult to assess (for an attempt, see Sedat Ergin in Hurriyet). A bit on the new law from Hurriyet Daily News:

“Once enacted, the amendments would reduce the number of people who await trial in jail,” he said, adding that judges would be required to provide concrete justification for arrest orders and would be able to use alternative measures, such as judicial control, for a wider range of offenses.

Turkey’s long pre-trial detentions have been the subject of much criticism recently, as nearly half of those behind bars are not yet convicted of any crime.

The prospective reforms would also aim to widen media freedoms, Ergin said. A provision that allows for the suspension of publications on grounds of “terror propaganda” will be abolished, and confiscation orders for publications will be removed after a transition period, he said.

An amendment to reduce the jail term for those who “assist terrorist organizations” is also included in the package.

The reforms would suspend all probes into offences committed via the media that are punishable with jail terms of up to five years, Ergin said. If the same offense is not re-committed within three years, the cases would be scrapped for good.

The package aims to relieve the courts of the huge burden related to relatively minor crimes such as driving offenses, check fraud and clandestine electricity use. Such breaches would be penalized with fines and the courts would be relieved of about two million cases, the minister said.

It seems there are at least two positive steps forward in the legislation: first, that the practice of detaining suspects before they are indicted, let alone tried, might become somewhat more difficult; and, second, that those accused of committing a crime carrying a maximum sentence of five or less years will perhaps not be imprisoned while they await a verdict.

As to the first, prosecutors will have to provide concrete evidence to courts before detaining suspects. Yet how this will work in practice is yet to be determined since the standard of "concrete" is obviously open to interpretation, especially by specially-authorized courts with unique powers that continue to operate without much regard for any consistent application of a standardized rule of law.

As to the second, many of those currently detained are facing sentences for crimes that carry maximum sentences much greater than five years, and grouping together charges to make for hefty potential sentences is a common judicial practice. If there is a will to detain someone, there is still very much a means. The most controversial detentions, those that have taken place in the context of the Ergenekon/Sledgehammer investigations and the KCK operations, have most routinely charged suspects with being members of terrorist organizations, a crime that carries a maximum sentence of ten years. These suspects would not be eligible for the alternative pre-trial arrangements vaguely described in the law.

Further, it is not clear whether those facing five years or less in prison will most definitely be released before they are tried. That said, the maximum sentence for spreading propaganda/assisting a terrorist organization has been reduced to five years, which, depending on implementation, might free some journalists and lawyers who are charged with the lesser offense.

And What About the Students?

PHOTO from Radikal

As many critics point out, the judicial reform bill does not address the increasingly conspicuous problem of jailing student protestors. Turkey has a long history of lively student dissent, and the recent rise in the number of students imprisoned for political protest has garnered much attention in the opposition press.

Last month, Cumhuriyet  reported that approximately 500 students have been jailed for the political activities, mostly young leftists staunchly opposed to the AKP-led government. The students are frequently jailed under the Anti-Terrorism Law, and according to Cumhuriyet and other reports in the press, are often placed in solitary confinement in F-type prisons.

One of the most controversial cases involving student protestors in Malatya who were charged with membership in a terrorist organization for distributing tickets for a Grup Yorum concert and participating in celebrations marking International Women's Day. There are numerous other cases like this one, and the details vary from paper to paper. That said, the sheer number of detentions, arrests, and the lengthy sentences, in addition to prison conditions, are becoming a major human rights issue. There has also been attention paid to what happens to the students even if they are eventually acquitted and released, in addition to penalties imposed not by prosecutors and courts, but by administrators and universities. For this latter dimension, see this article from Radikal.

Many columns addressing Ergin's judicial reform touched specifically on the topic of students, which goes to so just how important the issue is becoming for those who do not feel their rights are secure under the current government. Whether the AKP will address the issue is yet to be seen, but opposition forces are certainly not letting the issue go by the wayside. For more reports of students either in prison or waiting trial for crimes related to political protest, see accounts in English from human rights monitor Bianet.

TIHV & IHD Release Joint Report

The Turkish Human Rights Foundation (TIHV) and the Human Rights Association (IHD) have released a joint report chronicling a rise in violence and state repression despite the government's recent Kurdish initiative. From Today's Zaman's Ayse Karabat:

Mere discourse on a peaceful and democratic solution to the Kurdish question was enough to lead to a decrease in human rights violations last year, but the lack of concrete steps since then has resulted in an increase in violations in 2010, a joint report by the Human Rights Association (İHD) and the Turkish Human Rights Foundation (TİHV) has found.

“In the year 2009, the state officially recognized the Kurdish question, but since then the government has not taken constitutional or legal steps for a peaceful and democratic solution. As a result, in the year 2010 armed clashes resumed, although even the discourse on a solution in 2009 led to a decrease in the number of people who died in armed clashes,” the report indicates. According to human rights activists, statistics from the past several years show that concrete steps for the peaceful and democratic solution of the Kurdish question will lead to a marked decrease in violations of the right to life.

TİHV Chairwoman Şebnem Korur Fincancı said there are actors in Turkey who benefit from the atmosphere of clashes and tension and who are doing their best to prevent democratization.

“When there is a positive atmosphere, those forces create provocations in order to increase tension,” she told Today's Zaman. She also noted that the government talks about democratization and a peaceful solution while at the same time launching security operations in which many Kurdish politicians, including mayors, have been arrested.

“This makes us question the sincerity of the government regarding the democratization initiative,” she added, and underlined that pressure on human rights defenders is increasing, as some have been imprisoned and others, including herself, have court cases pending.

The report documents an increase in violations on freedom of expression, freedom of association, and freedom from torture. The report asserts that in 2009 police intervened in a total of 229 demonstrations, resulting in a total of six deaths, 356 injuries, 7,718 detentions, and 1,923 arrests. Ten cases were opened to close foundations, associations, and political parties. It also argues that impunity continues to exist for security forces who violate human rights, and urges Turkey to sign the additional protocol of the Convention Against Torture.

Black Pink Triangle Saved from Court Case

Izmir's Sixth Court has refused to hear a case brought by a prosecutor against Izmir's Black Pink Triangle LGBT association. The judge declared that LGBT associations have the same right to exist as other associations, ruling that Black Pink Triangle cannot be closed for violating public morals. For background, see Feb. 14 post.

May Day

Istanbul Governor Muammer Guler announced on NTV on Monday that his administration would allow a number of workers to take to Taksim Square during this year's May Day celebrations. Though the government made May Day, celebrated worldwide as International Workers' Day, an official holiday, the government and police have been criticized in recent years for excessive handling of leftist demonstrations. The police's handling of May Day demonstrations in 2008 have been particularly scrutinized. A point of contention to Guler's announcement comes in response to his stated intention to attempt to limit the number of workers who can take to the square. The Confederation of Revolutionary Trade Unions (DISK) and other unions have said that the number of workers allowed to take to the square should not be limited or neotiated, and that efforts to do so will only increase tensions.

TÜSEV's Cengiz Looks at Associations Law

Orhan Kemal Cengiz
PHOTO from Today's Zaman

The Third Sector Foundation of Turkey (TÜSEV)'s Orhan Kemal Cengiz has authored a report on the continued difficulties faced by associations as a result of the Associations Law. Despite a drastic overhaul of the law in 2004 at the height of the EU-inspired reform process, significant hurdles continue to encumber the opening, operation, and efficacy of civil society organizations in Turkey. From Today's Zaman:

The report said the establishment has failed to understand that civil society has an autonomous structure completely independent of the public sector. The report said although the new laws made it clear that associations should exercise self-inspection mechanisms, the over-regulating and over-supervising attitude of the state still remains in place. It said this meant that essentially, the root of the problem remained embedded in the legislation, albeit in a much alleviated form: “Unfortunately the custom of taking back rights given by laws via ‘soft’ legal instruments such as regulations or decrees and/or the curbing of rights through such means is a continuing trend.” The report also said the application of the law changed considerably from field to field, saying human rights groups particularly complained about differences and the arbitrariness in the enforcement of the law.

The report also noted that Turkey’s counterterrorism laws were still a major obstruction in the way of the freedom to organize and form associations, as noted by the European Court of Human Rights in various verdicts. The report, in line with the European court’s rulings, said bureaucrats and security officers often abused the tremendous powers vested in their hands by the current Counterterrorism Law. It said some very general and ambiguous descriptions of terrorism in the law created major problems regarding freedom of expression.

Ethnic, religious, and other minority groups still frequently encounter "soft discriminaton" when applying for building permits, etc., and as noted here, the Anti-Terrorism Law, passed in 2006, has not helped, only greatly broadening the authority of bureacrats and security forces to restrict the operations of civil society groups that earn their displeasure.

From the most recent EU Progress Report:

Some legal provisions place an undue burden on the operations of associations. There are high fines or severe punishments for failing to comply with the Law on Associations23. The legal
obligation to notify authorities before receiving financial support from abroad places a burden on associations. Negative portrayal in certain media and at times disproportionate inspections of NGOs receiving funds from abroad, including EC funds, remain a further cause for concern.

Problems with registration of associations and foundations, in particular local representations of international NGOs, are still being reported. At least two other cases regarding major foreign NGOs (International Crisis Group and the Raoul Wallenberg Institute) have been pending for more than a year.

Overall, the legal framework on associations is broadly in line with European standards. However, considerable progress needs to be made as regards its implementation, as associations still face disproportionate scrutiny of their activities, which in some cases has led to judicial proceedings.

There is a growing awareness in public institutions and in the public at large about the crucial role played by civil society organisations, including in the accession process.

However, some difficulties encountered with the consultation procedures reflect the lack of trust between State institutions and civil society organisations. The legal framework for collection of donations and tax exemptions for NGOs needs to be strengthened, in line with EU good practice, to improve NGOs’ financial sustainability.

The Progress Report also cites the 3 month to one year sentence that may befall NGO executives who fail to keep proper records.

For an excellent look at the Turkish environment for NGO operations in light of the accession process, see Nigar Goksel and Rana Birden Gunes, "The Role of NGOs in the European Integration Process: The Turkish Experience," South European Society and Politics, Vol. 10, No. 1 (April 2005), pp. 57-72.

Far From Safe: Yet Another LGBT Group Targeted

PHOTO from Hürriyet Daily News

The Izmir Governor's office is seeking closure of LGBT group SiyahPembe Ucgen (BlackPink Triangle) for threatening "Turkish moral values and family structure." From Hürriyet:

The case against the Black Pink Triangle Association is not the first case opened against an LGBT organization in Turkey in recent years. The Interior Ministry has repeatedly attempted the closure of such organizations on similar claims. In 2005, KAOS-GL and in 2006, Pembe Hayat (Pink Life) faced closure cases. In 2009, Lambda Istanbul won its closure case after a lengthy legal battle.

. . . .

Black Pink Triangle is the first İzmir-based LGBT organization and was established in February 2009. Following the founding of the organization, the governor’s office complained that one of the articles in the Black Pink Triangle’s constitution was violating the Turkish civil code, in particular, paragraphs protecting Turkish moral values and family structure. The office also demanded the organization amend the questioned article and submit full documentation of the change within 30 days. Black Pink Triangle claims it met the deadline, however, did not alter the constitution, regarding such demand to be a violation of the members’ freedom of association. Following that incident, the İzmir Governor’s Office brought the complaint to the prosecutor’s office in May.

The Istanbul LGBT organization Lambda faced a similar complaint from the Istanbul governor's office, winning their case at the Supreme Court of Appeals a little over a year ago following a long legal process. However, Lambdaistanbul is continuing their legal fight, claiming the reasoning of the decision still facilitates the closure of LGBT groups for "moral" reasons. From Amnesty International following the Supreme Court of Appeals' decision:

However, as we take a closer look on the fifth page of the reasoning, it is noted that the court of appeal indeed agrees to a great extend with the court of first instance with regards to its persuasions on "general morals". Without a doubt, the following sentence on the fifth page is an open threat to all LGBTT organizations in Turkey:

"Certainly, the execution of the above mentioned articles 30 and 31 and the dissolution of the defendant association could still be demanded, if it would act counter to its constitution, in the ways of encouraging or provoking gay, lesbian, bisexual, transsexual and transvestite behavior or acting with the aim of spreading such sexual orientations."

Sexual orientation or sexual identity cannot be changed through imposition. It is the fact both for LGBTT and for heterosexual people, admittedly the majority of the population.

For the last 20 years, it is not the number of gays, lesbians, bisexuals, transsexuals and transvestites increasing, rather it is their individual and organized visibility that has been pressured and silenced until today. It is thus, unfortunate, that the court of appeal considers the organized visibility and rights struggle of the ignored LGBTT's, who are subjected to pressure and othering because of their sexual identity and sexual orientation, as a risk to society.

And, here is a press release SiyahPembe Ucgen issued in January about their own case:

The closure case that has been taken against SiyahPembe Üçgen (BlackPink Triangle) Izmir begins with the first session on the 9th February...

The first trial of the closure case that has been taken to the 6th civil court of general jurisdiction of Izmir by chief public prosecutor's office after the recourse of Izmir's governorship with the claim that the 2nd article of its charter's being "against the general morality and the protection of family" is on 9 February, 2010.

The closure case against SiyahPembe Üçgen Association is an attempt to block LGBT (Lesbian, Gay, Bisexual and Transsexual) individuals' right of association, whereas, it, for the communities that faces discrimination, is an absolute must. The only possible way to resist to isolation and exclusion for lesbians, gays, bisexuals and transsexuals that are under pressure of the social structures because of their sexual orientations and identities is unity and solidarity. There is no other discovered way to struggle against hate crimes, homophobic and transphobic discourses and discriminatory practises in publicity. In a world where heterosexism is rammed down people's throat as a divine reality, closing down the LGBT associations who are the only ones that can criticise all is the sign of an authoritarian mindset.

How possibly should an association that was founded on the purpose of securing LGBT individuals' vital rights and while they try to exist economically, socially and culturally, preventing them being exposed to discrimination be closed?
The black pink badge that LGBTs were forced to wear in Nazi Genocide Camps shall no more be the symbol of destruction and discrimination but a fight for a life that is based on living together with all our differences.

As well as for heterosexuals, the constitutional rights and freedoms go for lesbians, gays, bisexuals and transsexuals!

Against all kinds of discrimination and inequality, we call for all right defenders who shout for equality and freedom to be with us and act with solidarity as long as this case continues...

SiyahPembe Üçgen cannot be closed down, must not be closed down!

As Jenny White writes, " as in Article 301 court cases accusing people of “insulting Turkishness,” the aim is often judicial harrassment, months of court appearances, legal costs, disruption of lives, and often threats in the street. You don’t need a conviction to do damage."