Freedom House, Heinrich Böll and MLSA hold panel on “Turkey’s democratic downfall”

On April 29, Media and Law Studies Association (MLSA), Freedom House and Heinrich Böll Foundation, held a panel titled “Turkey’s Democratic Downfall: Challenges and Ideas for the EU and US.”

Four panelists from Turkish and international civil society organizations with legal expertise spoke at the event held under the Chatham House rule, which means that identities of the participants cannot be disclosed, but their ideas and opinions can be shared with the wider community.

Taking the floor after the opening speech, the moderator asked the first speaker to comment on the closure case filed against the Peoples’ Democratic Party (HDP). The speaker began by emphasizing that the pressures against the HDP and the Kurdish movement were already existent before the coup attempt in 2016 and has been increasing gradually since then. “The HDP remains open, but this doesn’t mean that it is operating freely. All party constituents are facing judicial harassment. Imagine a country where the freedom of political action of the third largest party in Parliament has been completely abolished”, said the speaker, who also reminded that the indictment, accusing the party of having become a “focal point for terrorism”, was rejected by the Constitutional Court for “lack of fundamental evidence”.

Stating that the Kobane trial against high-level party executives had started last week but did not “progress”, the speaker continued with the following words: “The judges dismissed the lawyers from the courtroom. The defendants refused to give their statements when the lawyers were not present in the courtroom, that is why the hearing was postponed. When we ask why this pressure on the HDP exists, this question will unfortunately not have a legal answer. This is because all activities of the HDP are lawful, they are within the legal framework. The answer to this question is political and it is related to the end of the peace process. Following the end of the peace process, a period of suppression of the Kurdish movement started with an intensity that was unseen before.”

“We are faced with a political structure that does not comply with its own legislation”

Emphasizing that the Kurdish issue has been the most critical problem of Turkey for the last 100 years, the speaker said: “We know that this problem will not be solved through the state’s pressure and policy of denial. The solution can only be a democratic one”. Defining the government in Turkey as “a political structure that does not comply with its own legislation, interprets the European Convention on Human Rights like the legal text of an enemy state, and that completely abandoned the law”, the speaker pointed out that the pressure against the HDP will continue to intensify as long as this structure stands.

Taking the floor again, the moderator, in reaction to the speaker’s emphasis on the political nature of the problem in question, said, “The legal struggle should continue, but we will also touch upon the question of what kind of tools we should resort to when the rule of law collapses”, and passed the word to the second speaker.

The speaker started by briefly summarizing the protests initiated by Boğaziçi University students after the anti-democratic rector appointment through Presidential decree, that have been continuing since January: “This is the first time since 1980 that something like this has happened in Boğaziçi University. When the protests started, around 1000 people were detained and 11 students were arrested. Fortunately, all of these students were released at their first hearing. However, a lawsuit was filed against 97 students. The protest of the academics turning their backs to the rectorate building in the campus square still continues.”

“Students are stigmatized, a Minister targeted students by calling them ‘LGBTI+ perverts’”

Stating that the students participating in the protests are being “stigmatized”, the speaker also explained how they were criminalized in the process by being branded as “terrorists” and “provocateurs” and by being identified as “vandals” and “supporters of LGBTI +” in the pro-government media. The speaker recounted that the rainbow flag was called a “terror flag” and that “Interior Minister Süleyman Soylu targeted students by calling them ‘LGBTI perverts’ with exactly these words”. Underlining that with the opening of disciplinary investigations, students were being deprived of scholarships and dormitory rights, the speaker said: “To be housed in a state dormitory, for example, you must not have insulted the President.”

The speaker stated that the regime becomes more authoritarian with each new Presidential decree and reminded that Turkey withdrew from the Istanbul Convention in the same way. They also highlighted a striking point in this regard: “How can a convention that was approved by the parliament be left through a Presidential decree?”

Coming back to the Boğaziçi protests, the speaker reported about the severe violence used by the police during the protests: “We know that torture was practiced at the police station and in the detention vehicles. We know that especially LGBTI+ and women were targeted afterwards, and rainbow flags were restrained in protest areas.”

The speaker, who has been working with university students for two years, evaluated the situation before the pandemic: “From an organizational perspective, the period before the spread of the Coronavirus was a good time for the student movement. During the pandemic, they began gathering together via social media and have started to make themselves heard through hashtags. Not only Twitter, but also Clubhouse is very popular and frequently used, especially in the Boğaziçi protests. Even the hosts of Clubhouse discussions were investigated.”

“Even disciplinary actions lead to loss of scholarships”

The speaker underlined that disciplinary investigations lead to the loss of scholarships for the students even if they are not followed by a proceeding. The speech ended with the conclusion that the trial against 97 students could go on for years and that this long trial process in itself may lead to further infringements, for instance through the imposing of judicial control measures such as travel bans, a common practice that is used as a method of punishment.

Taking over, the moderator passed the floor to the third speaker to talk about how the judiciary is instrumentalized to silence the opposition. In light of the context laid out by the previous contributions, the speaker started by saying that “one of the most important points in this discussion is the role of the judiciary”. Based on this, the speaker emphasized important tendencies and structural problems of Turkey’s judiciary that emerged over the last two decades: “To grasp these, one can look at the decisions of the European Court of Human Rights. About 4000 decisions of the court pertain to Turkey. In my reading of the Strasbourg Court’s case law, two important trends stand out in this period with regards to the judiciary’s current function.”

“Widespread and arbitrary use of local laws entail unpredictability”

The speaker remarked that the first of these two trends is the widespread and arbitrary use of local laws entailing an unpredictability of law, while the second trend is the judiciary acting according to political instructions. According to the speaker, the second trend came to light with two high-profile Grand Chamber decisions, namely with the Kavala and Demirtaş rulings: “The ECtHR looks at a number of indicators to come to a result. The first indicator is the existence of an almost ‘causal’ relationship between the government’s discourse and judicial decisions. That is to say, something is said in politics, and a few hours or days later the judges issue a decision.” Stating that the second indicator observed by the ECtHR is “the proximity of the prosecutors to the incidents in question”, the speaker explained the following: “In both the Kavala and Demirtaş trials, the prosecution suddenly started to show interest in the incidents from 4, 5 or 6 years ago. This means that these prosecutors are too close to political discourse.”

“Single judge systems considered alarming by the ECHR”

Pointing out that another problem emphasized by the ECtHR relates to the structure of the Turkish judiciary, the speaker identified the problem as the “single judge systems”: “Criminal judgeships of peace. They hand down a large part of detention decisions. They decide on internet access bans. According to the ECtHR, it is alarming that a single judge makes such decisions.”

Lastly, the speaker highlighted a topic that emerged both from their and the previous speeches, saying that it all comes down to the question of “How can we engage in the struggle at a point where the rule of law is not functioning?” There, the speaker added that “the slogan of the judiciary not being independent but being used as a weapon does not solve the problem”.

The fourth and final speaker began by emphasizing the question of how to create incentives for the authorities to implement ECtHR rulings. Underlining the fact that it is important to remind the Turkish authorities that it is “in their own interest, not just the Turkish people but the government itself, to have a stable relationship with the EU,” the speaker pointed out that we are in an era of general global erosion of legal obedience and of weak institutions: “The goal for all of us is to work towards the feeling that international law is something worth abiding by. Turkish authorities don’t think that they need a good relationship with the EU. We see this in a lot of countries.”

“Rulings will not implement themselves”

Stating that “The EU is looking for its own way to get its act together” in an era where authoritarians are learning from each other; the speaker pointed to the Russia-Turkey situation: “It is hard to tell who is learning from whom, but there is a ‘circular learning’ situation.” Lastly, touching upon the issue of “learning how to implement values”, the speaker noted that “rulings won’t implement themselves” and pointed out the “need to use hard power and not always soft power”.

After the completion of the first round of speeches, the moderator asked the panelists their suggestions and thoughts on “how to use legal instruments to address the problems we are seeing in Turkey”.

The first speaker to take the floor highlighted that despite the observation that the solution needs to be political, legal means should not be cast aside. In that sense, the speaker highlighted the efforts of Turkish lawyers in using ECtHR applications as a means to create important case law: “Let’s look at the Osman Kavala and Selahattin Demirtaş cases, for which lawyers worked very hard and succeeded in bringing about two great decisions. The Demirtaş decision, for example, is not only about Demirtaş, it is a meaningful and important decision for other HDP executives, too. We, the lawyers in Turkey, try these channels, we use them and are successful.”

Underlining that domestic political dynamics are likewise important to assure that the ECtHR case law will be applied, the speaker expressed disappointment about the opposition which did not sufficiently take up the ECtHR decisions: “The parties in the opposition bloc, such as the CHP and İyi Party, ignored the Demirtaş decision only because of his political identity.” The speaker also explained why it is important to look at court decisions from a perspective that leaves aside political identities: “Tomorrow or another day, a CHP deputy may be arrested and then they will also apply to the ECtHR and the case law they will apply will be the Demirtaş jurisprudence. The CHP should strive to make Turkey comply with the court’s decisions because they are also among the victims of this political system.”

“Committee of Ministers does not wish to disturb the political balance with Turkey”

Turning to Europe’s leverage in that matter, the speaker placed emphasis on the role of the Council of Europe’s Committee of Ministers to oversee the implementation of ECtHR decisions but at the same time criticized its caution: “The Committee of Ministers has requested Turkey three times to comply with the Court’s decision in the Kavala case but apart from these statements nothing else has been done. Although the Committee has the right to apply against Turkey at the ECtHR, it refrains from doing so in order to not disturb the political balance with Turkey.” Against that background, the speaker pointed out Turkey’s obligation to comply with ECtHR decisions and the possibility to be  sentenced a second time for violation.

Mentioning the thousands of individuals who migrated to Europe because of the human rights violations in Turkey, the speaker stated: “The Council of Europe should understand that Turkey’s human rights problem is also Europe’s problem. It is unacceptable to make cheap deals with Turkey in which refugees are used as an instrument to sustain the relationship, while the human rights here are ignored and sacrificed.” In their conclusion, the speaker suggested that the democratic sections of Turkey’s society should establish close relationships with Europe in reaction to the Turkish government’s forming of alliances with Hungary and Russia.

An audience member, an academic dismissed from their position, stated that they do research in the field of Turkey’s civil society and deal with the question of why international mechanisms fail to operate. Noting that the legal experts and human rights defenders in Turkey are working really hard to document these and continue the legal struggle, the audience member noted that there is another aspect to the issue and that is to render the civil society organizations operable: “In this respect, do you carry out a substantial debate?”

In response to the audience member’s question, one of the international speakers noted that they do so, in terms of the functionality of the institutions, and mentioned the cases of the German and Russian parliaments: “If other countries see that the rulings of the ECtHR don’t have to be implemented, that nothing is done about it… This causes a chain reaction. In terms of the Council of Europe, we need to impose political pressure on governments.”

One of the speakers added: “Monitoring, reporting and campaigning; we are doing everything we can to create a more democratic reality. European countries should react strongly to human rights violations as they happen. Sending missions and representatives for trial monitoring, for instance, is very effective. They can also visit political parties and other civil society organizations in a timely fashion.”

“Human Rights Action Plan is a cosmetic act”

The moderator asked one of the speakers for some practicalities, and whether they have any suggestions that could guide international actors. In response, the panelist remarked the importance of trial observations and real-time presence. Noting that they think the Council of Europe Committee of Ministers is doing a good job as they put the Kavala case on the agenda of every meeting, the speaker also said that these institutional mechanisms may be very frustrating, cumbersome and that they take a long time. They also touched on the announcement of the Human Rights Action Plan which sparked heated debates domestically, and defined it as a “cosmetic act” that constitutes no real progress.

Another international speaker said: “Despite these cosmetic moves, there are still many topics that remain unsolved, unamended. The anti-terror law is a good example of this, there hasn’t been an amendment in the way that is required. For example we still don’t have visa liberalization because there are still some requirements that have not been met, some outstanding amendments that need to be implemented.”

“US administration, alongside Brussels, may be the last hope towards ensuring a democratic Turkey”

In response to the moderator’s question on the role of the US and President Joe Biden, the speaker agreed that they still have “great hopes” regarding the new administration and said: “Europe alone won’t be able to bring much change of mind, we do hope that the Biden administration will be able to do so.” The speaker also noted that although it is an important step forward, the genocide recognition is not enough and that it should be made clear to the US administration that they are “the last hope, maybe along with Brussels, towards ensuring a democratic Turkey”.

One speaker brought to mind that the former US government’s discourse encouraged anti-democratic fractions in Turkey. Another speaker remarked that the US government’s support for Turkey’s civil society is a very important step and that they are very happy and excited about it, and added: “The suspension of EU sanctions had played a role in the strengthening of AKP’s hand”.

Thanking all speakers for their contributions and suggestions on the challenges and ideas to counter Turkey’s democratic downfall, the moderator ended the panel.