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Turkey; United Nations: Criticism of Anti-Terrorism Laws

(Nov. 8, 2012) On November 1, 2012, the United Nations Human Rights Committee (HRC) – a body of 18 independent experts responsible for monitoring implementation of the International Covenant on Civil and Political Rights (ICCPR) (in force on Mar. 23, 1976, Office of the U.N. High Commissioner for Human Rights website) by its State parties – issued a criticism of Turkey for using the country’s “vague” Anti-Terrorism Law to prosecute activists, journalists, and lawyers. (Sarah Posner, UN Rights Committee Criticizes Turkish Counterterrorism Laws, PAPER CHASE NEWSBURST (Nov. 2, 2012); Stephanie Nebehay, Turkey Using Anti-Terrorism Law to Quash Debate – U.N., REUTERS (Nov 1, 2012).)

Although Turkey implemented a package of legal reforms in July 2012, including some reforms that affected provisions in the Anti-Terrorism Law and the Criminal Code on illegal organizations, the measures apparently did not go far enough in the eyes of the HRC. Among the changes was the repeal of article 6, paragraph 5, of the Anti-Terrorism Law, which had allowed prosecutors and the courts to suspend newspapers and magazines accused of offenses such as “making terrorist propaganda” for a period of up to 30 days. (Turkey: Draft Reform Law Falls Short, HUMAN RIGHTS WATCH (Feb. 13, 2012); Terörle Mücadele Kanunu [Law on Fight Against Terrorism] (as last amended July 2, 2012), Republic of Turkey Ministry of Justice website.)

In its November observations on Turkey’s initial report to the HRC’s 106th session, a session that examined the human rights records of five countries, the HRC expressed concern that several provisions of the Turkish Anti-Terrorism Law are incompatible with the ICCPR. It criticized in particular:

(a) the vagueness of the definition of a terrorist act;

(b) the far-reaching restrictions imposed on the right to due process; and

(c) the high number of cases in which human rights defenders, lawyers, journalists and even children are charged under the Anti-Terrorism Law for the free expression of their opinions and ideas, in particular in the context of non-violent discussions of the Kurdish issue. (HRC, Concluding Observations on the Initial Report of Turkey Adopted by the Committee at Its 106th Session, 15 October to 2 November [Advance Unedited Version]; Nebehay, supra.)

“Terrorism” is defined under the Anti-Terrorism Law as

Any criminal action conducted by one or more persons belonging to an organisation with the aim of changing the attributes of the Republic as specified in the Constitution, the political, legal, social, secular or economic system, damaging the indivisible unity of the State with its territory and nation, jeopardizing the existence of the Turkish State and the Republic, enfeebling, destroying or seizing the State authority, eliminating basic rights and freedoms, damaging the internal and external security of the State, the public order or general health, … . (Law on Fight Against Terrorism (Apr. 12, 1991, as amended in 2010), art. 1, LEGISLATIONLINE [scroll down page to view] [Note: this article was not changed by the 2012 amendments].)

Terrorist offenses and offenses committed with terrorist aims, covered under articles 3 and 4, respectively, of the Law are for the most part defined with reference to a list of articles in the Turkish Criminal Code.

In the view of the HRC, Turkey should address the vagueness of the Anti-Terrorism Law’s definition of terrorism by limiting its application to offenses “that are indisputably terrorist offences,” by guaranteeing that the prosecution of terrorist acts fully respects all the legal protections under ICCPR article 14, and by ensuring that the transitional legal provisions be consistently applied. (HRC, supra.)

As for due process, the HRC expressed concern over Turkey’s “widespread use of lengthy pre-trial detention of up to ten years for terrorism-related offenses and five years for other offenses, including three one-year extensions, largely contributing to the problem of overcrowding of prisons,” as well as detainees’ lack of access to an effective mechanism for challenging the lawfulness of such detention. (Id.) Under the Anti-Terrorism Law, a suspect may receive the assistance of one defense lawyer during the detention period. However, a detained suspect’s right to consult a lawyer may be limited for 24 hours at the prosecutor’s request and by the decision of a judge, although interrogation is not permitted during this period. (Law on Fight Against Terrorism, art. 10(b).) The HRC is critical of the fact that in practice defendants are not always assured prompt access to a lawyer; it noted that the risk of torture is highest during the first 24 hours of custody. (HRC, supra; Nebehay, supra.)

To remedy these shortcomings it perceives in Turkish law, the HRC called upon Turkey to reduce the legal period of pre-trial detention and ensure its use only as an exceptional measure, in accord with article 9 of the ICCPR (HRC, supra), which provides for the prompt presentation before a judge or other judicial officer of persons arrested or detained and stipulates in particular that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody.” (ICCPR, supra.)

The HRC also urged the Turkish authorities to guarantee detainees’ access to a lawyer and “to an effective and independent mechanism to challenge the lawfulness of their pre-trial detention,” and to rely more on such measures as electronic monitoring and conditional release as alternatives to pre-trial detention. (HRC, supra.) Erdogan Iscan, Director-General of Turkey’s Ministry of Foreign Affairs, stressed in the debate over the issue that the Anti-Terrorism Law “allowed authorities to protect the public and ensure a swift judicial process,” “was in accordance with international human rights treaties,” and that “[t]he right to contact a lawyer was an absolute right and authorities had a policy of zero-tolerance to torture, … .” (Nebehay, supra.)

Among some of the other sources of concern to the HRC are the overcrowding in Turkish prisons and their conditions of detention and “the vagueness and lack of clarity of the definition of ‘illegal organisations’ which has the effect of restricting the right to freedom of association under article 22 of the Covenant.” (Id.) To remedy the latter, the HRC urged Turkey to “strictly limit the notion of ‘illegal organisations’ to ensure its full compliance with article 22 … .” That article declares the right of all to freedom of association with others and states: “[n]o restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety,” among other interests, even though lawful restrictions may be imposed on members of the armed forces and of the police in their exercise of the right. (ICCPR, art. 22(2).)

It has been reported that at present almost 100 journalists are imprisoned in Turkey, “in addition to thousands of lawyers, activists, politicians and military officials …in prison mainly on charges for plotting against the government or supporting Kurdish militants.” (Posner, supra.) According to the Committee to Protect Journalists, moreover, Turkey has incarcerated more reporters than China, Eritrea, or Iran. (Nebehay, supra; About CPJ (last visited Nov. 6, 2012).)