Observatory for the Protection of Human Rights Defenders Annual Report 2004 - Turkey

Legislation on freedom of association⁸⁶

2004 was marked by many changes in the legislation relative to freedom of association.

At the beginning of the year, two particularly restrictive circulars were issued. The first one, dated January 2004, stipulated that associations and foundations would only be given provisional authorisation to collaborate with foreign organisations. Moreover, each year, organisations have to furnish authorities with a description of all of the activities they have undertaken with foreign organisations. Public meetings attended by foreigners have to be reported to the General Directorate for Security. The second circular, published in May 2004 by the General Directorate of Foundations, stipulated that foundations were required to request authorisation to participate in calls for projects financed by international organisations, including the European Commission.

Both circulars were issued despite the fact that draft legislation on associations was being debated by Turkish Parliament. New Law No. 2953, went into force on 22 November 2004 and constitutes a major step forward for Turkish associations and foundations. The restrictions put into force by the circulars were to be revised early in 2005, for the purposes of compliance with new legislation.

The main changes brought about by Law No. 2953 are as follows:

– Acknowledgement of the right of all persons, including moral persons – except the members of the Turkish armed forces, security officers and civil servants in certain circumstances – to found an organisation; the need for prior authorisation no longer applies.

– Prior authorisation is no longer required to open branches of an organisation abroad, to become affiliated with a foreign organisation or to meet with foreigners.

– Local authorities no longer have to be informed of general assemblies.

– Governors have to issue warnings before starting legal proceedings against organisations.

– Local law enforcement agencies are not allowed to enter the premises of organisations without prior authorisation from the courts.

– Authorisation is no longer required to receive funds from abroad, although district governors have to receive prior notification.

– Criminal sanctions against organisations for "breaching" their statutes have been lowered.

However, the new Criminal Code described as "Euro-compatible" by the European Commission, and approved in September 2004 will go into force in April 2005 and it still contains repressive provisions that may affect human rights defenders. In particular, article 302 comprises most of the provisions of article 159 of the former Code, which has been widely criticised and used as the basis for legal proceedings against human rights defenders on numerous occasions. Article 302 provides for prison sentences for " insulting the Turkish identity, the Government and military institutions". Article 306 provides for long sentences for activities against "national interests". Article 216 was written in the spirit of the amendment introduced in 2002 to article 312, stipulating that a person can only be punished for "inciting hate" in cases where his words constitute "clear and imminent danger". However, human rights defenders continued to be charged on the basis of the amended article, as can be seen from the case of the organisation Göc-Der, described below.

The IHD and its members targeted

Headquarters and the Ankara Branch

Search of IHD's Ankara premises⁸⁷

On 6 March 2003, the headquarters of the Human Rights Association (IHD) in Turkey and the offices of their branch in Ankara were raided by the special anti-terror forces on instructions from the Security Court, as part of a preliminary investigation and proceedings for "aiding an illegal organisation" (article 169 of the Criminal Code).

In 2004, after having examined the documents seized, the prosecution office of the State Security Court decided that the case did not fall under the jurisdiction of the Court and the case was referred to the ordinary Prosecutor's general office. The case was dismissed and closed.

Proceedings against 46 members of IHD Board of Directors⁸⁸

46 members of the IHD Board of Directors who had been charged with "possession of prohibited documents" (article 526/1 of the Criminal Code), following a police raid on organisation's premises in January 2001, appealed to the High Court after having been sentenced to pay a fine of 249,130,000 Turkish liras (146 euros) each. In 2004, the High Court accepted their appeal and they were acquitted.

Istanbul Branch

Harassment of Mrs. Eren Keskin⁸⁹

On 14 October 2004, the court issued an arrest warrant for Mrs. Eren Keskin, a lawyer and former president of the Istanbul branch of the IHD. The arrest warrant was issued after she failed to provide the judge with a statement in a case dating from July 2002, in which she is accused of "inciting hatred" (article 312 of the Criminal Code). At the end of 2004, this arrest warrant had still not been revoked.

Besides, on 8 April 2002, following a speech made in Germany during which she described how women in Turkish prisons were the victims of sexual assault, Mr. Fathi Altayli, a journalist, said on the radio that he would willingly sexually assault her. Mrs. Keskin lodged a complaint. In March 2004, the Sisli Criminal Court of First Instance N°3 sentenced Mr. Altayli to pay a fine of 500 billion Turkish Lira (292 euros).

Mrs. Kiraz Biçici sentenced⁹⁰

The conviction against Mrs. Kiraz Biçici, head of the Istanbul Branch of the IHD, was revoked at the end of 2003. Mrs. Biçici was sentenced to a 45-month prison term for "providing support to various illegal organisations, including the PKK", in an interview that was retransmitted on Media TV, during which she spoke about type F prisons.⁹¹

Bingöl Branch⁹²

Mr. Ridvan Kizgin, president of the Bingöl Branch, and Mr. Fevzi Abkulut, secretary of the same branch, were acquitted of breaking the law on demonstrations (Law No. 2911). They had been arrested for attending, as observers, a press conference organised by the Kurdish party HADEPP in 2002. They were held for two months. Despite the acquittal, the members of the Bingöl branch of the IHD were still under pressure from the authorities and Mr. Kizgin still had 35 charges pending against him as of the end of 2004.

Diyarbakir Branch⁹³

On 21 June 2003, during a demonstration organised in the Benusen quarter of Diyarbakir, certain representatives of human rights organisations took the floor and made reference to their commitment to a peaceful and democratic solution to the Kurdish conflict as well as general amnesty for militants in prison.

Following these events, the State Prosecutor of the Republic of Diyarbakir opened a judicial investigation. The heads of human rights organisations were heard by law enforcement authorities and brought before the State Security Court in Diyarbakir.

On 27 April 2004, the Observatory appointed a chargé de mission to serve as an observer during the trial of Messrs. Selahattin Dermitas, president of the Diyarbakir Chapter, Ali Önc, spokesperson for the Platform for Democracy in Diyarbakir, and Nejdet Atatay, member of the Platform. They had all been accused of violating article 312-2 of the Criminal Code, "inciting hatred and animosity".

On that date, due to the absence of the State Prosecutor, the presiding judge decided to provide the prosecution with a copy of the arguments to that he could reply. The judge also asked the Prosecutor for additional information.

On 25 May 2004 the court reached a verdict, acquitting Mr. Dermitas and the other two co-defendants.

Legal proceedings against HRFT members

Charges brought against the members of the Board of Directors of the HRFT⁹⁴

On 28 July 2003, the General Directorate of Foundations started legal proceedings before the Ankara Civil Court of first instance against nine members of the Board of Directors of the Human Rights Foundation in Turkey (HRFT). Charges were filed against Messrs. Yavuz Önen, president, Selim Olcer, secretary general, Sabri Dokuzoguz, treasurer, and Mehmet Vurale, Mustafa Cinkilic, Gunseli Kaya, Sukran Irencin, Okan Akhan, Sedat Aslantas, members.

The members of the Foundation were all formally accused of:

• collecting donations on the Internet without prior authorisation;
• translating into English and circulating to the international community the "Special Report on the Problem of Prisons in Turkey", drawn up by the Foundation's documentation centre;
• turning over documents on forced disappearances and summary executions in Turkey to the United Nations Special Rapporteur on extra-judicial, summary and arbitrary executions;
• turning over documents on type F prisons and on police operations in prisons in December 2000 to the Rapporteur on Turkey in the European Parliament;
• transmitting to the Human Rights Commissioner of the Council of Europe an evaluation report assessing the human rights situation in Turkey, and providing information on forced migration.

On 9 March 2004, the Civil Court of the first instance No.5 in Ankara heard the case. Because the Directorate, who had started the proceedings, was not present at the hearing, the Court ruled to close the case on the basis of article 409/5 of the Code of Judicial Procedure. As the plaintiff did not appeal the ruling within the three months provided for by the law, the case was definitely closed.

Charges brought against Mr. Alp Ayan⁹⁵

On 10 December 2003, the Observatory had appointed an observer at the trial of Mr. Alp Ayan, a psychiatrist and member of the HRFT Centre for the Rehabilitation Victims of Torture in Izmir, before the Izmir High Criminal Court. The Court had decided to postpone the trial to 3 March 2004, so as to hear testimony from new witnesses and from a woman who had also been indicted. Mr. Alp Ayan was charged with "insulting the Ministry of Justice" (article 159 of the Criminal Code), in a statement he made to the press on 10 February 2001, during which he spoke out against a police operation carried out against prisoners on 19 December 2000 that led to the death of 32 people.

On 26 April 2004, the Court acquitted Mr. Alp Ayan.

Charges brought against Mr. Alp Ayan and Mrs. Günseli Kaya⁹⁶

The Observatory appointed a chargé de mission to act as an observer during the trial of Mr. Alp Ayan and Mrs. Günseli Kaya, both members of the HRFT. They were brought before the Aliaga Criminal Court of first instance on 26 January 2004. Charges were brought against them, and others, on the basis of articles 32-1 and 32-3 of Law 2911 relative to meetings and demonstrations, for "using violence to resist law enforcement officers" during the funeral of Nevzat Ciftci, a prisoner killed during police operations on 30 September 1999. They had been attacked by a group of policemen who wanted to keep them from attending funeral services. Sixty-nine persons had been arrested, and 14 persons, among them M. Alp Ayan and Mrs. Günseli Kaya, had been placed in custody pending trial for four months. The trial date was moved forward to 13 February 2004.

On that date, and after a trial that lasted four years, Dr. Alp Ayan was sentenced to a prison term of 18 months and one day. Mrs. Günseli Kaya, and 28 other persons under indictment, were sentenced to a prison term of 18 month. Mr. Adnan Akin, who had also been indicted, was sentenced to a three-year prison term. All of the others were acquitted. At the end of 2004, the case was still pending before the highest court of appeals.

Legal proceedings against Messrs. Alp Ayan and Mehmet Barindik

On 10 June 2002, Messrs. Alp Ayan and Mehmet Barindik, an executive member of the trade union LIMTER-IS, had been sentenced to prison terms of one year and one day and one year, respectively, on the basis of article 159 of the Criminal Code. The case was referred to the Supreme Court for evaluation of some expressions used in the press release that both men had read in public, with respect to the amendments made to article 159, on 2 August 2002. Criminal Chamber No.9 of the Supreme Criminal Court had reversed the decision made by Izmir Criminal Court No.4. On 19 June 2003, during the hearing, the prosecution requested for an acquittal because the expressions that had been used could not be described as "criticism". The court, however, maintained the one-year prison term to which both human rights defenders had been sentenced and the case was referred back to the Supreme Court.

The Supreme Court referred the case back to the Izmir Criminal Court who then acquitted both human rights defenders on 16 September 2004, on the basis that the statements they had made did not violate the amended 2002 version of article 159.

Legal proceedings against Messrs. Alp Ayan and Ecevit Piroglu⁹⁷

The Observatory appointed a chargé de mission to act as an observer during the trial of Mr. Alp Ayan and Mr. Ecevit Piroglu, former member of IHD Izmir Branch, which was held on 26 April 2004 before the Izmir Criminal Court of first instance. They stood accused of"insulting the armed forces and the Minister of Justice", in connection with a statement they had published in February 2001, protesting human rights violations committed by the police in Type F prisons. Both men were acquitted.

Legal proceedings against Mr. Yavuz Önen

On 24 September 2003, the office of the Izmir State Prosecutor appealed to the Highest Court of Appeals, asking the Court to quash the decision of the Izmir Criminal Court of the first instance that acquitted Mr. Yavuz Önen, president of the HRFT. Mr. Önen had been sentenced to a prison term and a fine – the sentence was subsequently commuted to a heavy fine – on 27 March 2001 for having expressed his indignation with respect to the charges brought against Mrs. Kaya and Mr. Ayan in an article published in the daily Cumhuriyet on 19 January 2000. He had been acquitted by the Izmir Criminal Court of first instance on 23 September 2003 after having entered an appeal.

The trial was still underway at the end of 2004.

Conviction of the president of GÖC-DER⁹⁸

Mrs. Sefika Gürbüz, president of the Turkish NGO GÖC-DER (Immigrants for Social and Cultural Co-operation), and Mehmed Barut, member of GÖC-DER were charged, under article 312/2 of the Turkish Criminal Code, with "inciting hostility and hatred on the basis of class, race, religion, beliefs, and regional origin". The charges were brought for statements made during a press conference organised by GÖC-DER in April 2002 for the presentation of a report on the forced displacement of the Kurdish population.

On 19 January 2004, the Observatory appointed a chargé de mission to act as an observer during the trial, which was brought before the State Security Court in Istanbul. The Court sentenced Mrs. Sefica Gürbüz, to a fine of 2,180 million Turkish liras (1,280 euros). Mr. Mehmet Barut was acquitted.

The court convicted Mrs. Sefica Gürbüz despite the fact that the amendment made in August 2002 to article 312/2 restricted its application. Since that date, no one can be convicted on the basis of this article unless the incitement in question risks endangering the peace and public order.

Mrs. Sefica Gürbüz appealed the decision to the highest appellate court (Cour de cassation).

At the conclusion of 2004, the case was still pending.

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[Refworld note: This report as posted on the FIDH website (www.fidh.org) was in pdf format with country chapters run together by region. Footnote numbers have been retained here, so do not necessarily begin at 1.]

86. Idem.

87. Idem.

88. See Annual Report 2003.

89. Idem.

90. Idem.

91. Type of prisons built in 2000 where prisoners are kept in absolute solitary confinement.

92. See Annual Report 2003.

93. See Annual Report 2003 and Report of judicial observation mission, Turkey: two human rights defenders face trial.

94. See Annual Report 2003.

95. See Press Release, 15 December 2003.

96. See Open Letter to the Turkish authorities, 30 January 2004 and Press Release, 16 February 2004.

97. See Annual Report 2003 and Report of the judicial observation mission, Turkey: two human rights defenders face trial.

98. See Press Release, 21 January 2004.