Dr. Emre Turkut, as a legal scholar and expert in international human rights law and public international law, is putting tremendous effort to halt the deterioration of democracy, the rule of law, and fundamental rights in Turkey. Our discussion encompassed recent human rights issues, the ByLock case, the Turkey Tribunal, the European Court of Human Rights (ECtHR), the EU-Turkey relation and more.
During our conversation, Dr. Turkut emphasized that the claim regarding ByLock appears weak and questionable. The Turkish Anti-Terrorism Legislation poses a threat to rights, and Erdogan’s consolidation of power has steered the country toward authoritarianism. Consequently, the judiciary system has become dysfunctional, exacerbating the situation.
Enjoy reading his insightful and informative interview.
Thank you, Dr. Turkut, for giving an interview to the Politurco.
Before I start asking my questions, may you briefly tell us about yourself?
Absolutely. Thank you so much at the outset for inviting me for an interview. I am a legal scholar and my expertise lies at the intersection of international human rights law and public international law with a primary focus on issues related to states of emergency encompassing both political and health emergencies. Additionally, I have explored and written on topics such as counter-terrorism and human rights, judicial politics in authoritarian regimes, algorithmic fairness, international law in domestic courts and transnational judicial dialogue.
Turkey’s progressively veering towards authoritarianism
As an expert on public international law and international human rights law first, I would like to ask you about the deterioration of democracy, the rule of law, and fundamental rights in Turkey. What went wrong in Turkey to make things drastically change especially during the last 10 years?
The rule of law backsliding in Turkey is a highly complex issue with multiple factors at play. Within this complex landscape, we can discern several key elements that contribute to the challenge at hand, such as the erosion of checks and balances, restricted media freedoms, curtailed judicial independence, the excessive reliance on anti-terrorism tools and the impact of the 15 July failed coup, which led to widespread crackdowns. But it is important to note here that these factors are so intricately intertwined that they often act as both causes and consequences of one another. So whenever I think about these intricate dynamics, the famous Matryoshka dolls come to my mind. In a Matryoshka doll, each layer is connected to the others, and they form a unified and self-contained system. So does the systematic deterioration of the rule of law in Turkey. But in the background of this deterioration lies an overarching government that seeks to centralize power with each step it takes and progressively veering towards authoritarianism.
July 15 coup attempt transformed Turkey into a presidential autocracy
As you also mentioned about July 15 failed coup attempt, it was a milestone event on bringing Turkey to the edge of an abyss and triggered several unwarranted outcomes like the allegations on millions of people being members of a so-called terrorist organization. Before I ask you about the allegations, may I have your opinion briefly about the so-called failed coup?
The 2016 attempted coup has been undoubtedly a transformative event in Turkey’s recent history. It resulted in a dramatic shift in the political landscape towards a presidential autocracy marked by a massive crackdown on political opponents and centralized power. It is important to note the diversity of opinions and perspectives on the attempted coup, with some viewing it as a genuine threat to democracy and others questioning the government’s response. Seven years after the failed coup, the precise details still remain murky, so we still do not know some basic facts like who really organized the attempted coup or what transpired that night.
Legal view on ByLock
After the coup, thousands of people were dismissed from the public service, and millions are charged with membership in an alleged terrorist group. Having used an encrypted messaging app named ByLock was found adequate criminal evidence to be dismiss people or label them as terrorists under the incumbent Erdogan regime. What is ByLock? How could a smartphone app be counted as evidence in any court case? May you evaluate and tell us about this from a legal perspective?
ByLock is an encrypted message app that was in operation between 14 March 2014 to 19 February 2016 and it was widely accessible in most online markets and app stores including Google Play Store. As you have rightly noted, the use of ByLock app has indeed been commonly used by Turkish judiciary to charge individuals under Turkish terrorism framework for their alleged membership to the Gulenist Network. One core claim by the Turkish regime is that this app had been exclusively designed and developed to fulfill the communication needs of the Gulen network. However, this claim appears weak and questionable, given that the app was accessible to anyone through mainstream app stores. Numerous expert reports such as the Fox-IT and leading experts such as Jason Frankovitz and Thomas Kevin Moore have reached same conclusions refuting this exclusivity claim. The use of ByLock data as evidentiary material in legal cases raises additional questions about its reliability and admissibility. As we have discussed in our comprehensive report, titled “Perils of Unconstrained Prosecutorial Discretion: Prosecuting Terrorism Offences in Post-Coup Turkey” and published by the Italian Federation for Human Rights, there are numerous problems such as to how the ByLock data was obtained, where it is stored, and the content of the communication through this app. As a result, the reliance of the ByLock data by Turkish judiciary potentially runs afoul of several human rights standards. In this regard, the Yalcinkaya case before the European Courts of Human Rights (ECtHR), which deals with the use of ByLock, would be of paramount importance. The decision in this case, anticipated later this year, has the potential to offer conclusive and definitive insights into the ongoing complexities surrounding ByLock.
The reasons why Turkey’s domestic judiciary system fails
As we have discussed, thousands of people who are dismissed and imprisoned on such baseless allegations wanted to have their rights restore by appealing to the judiciary; however, they have failed repeatedly. Turkey’s domestic judiciary system failed to respond to the appeals of the victimized. Why do you think this happens? Why does the judicial system of Turkey fail to function properly during such a critical period?
A combination of external and internal factors could indeed explain the colossal failure of the Turkish criminal system since the 2016 attempted coup. During such sensitive periods, judicial bodies might face political pressures that could cast a shadow on their ability to deliver fair decisions and provide a check on the governmental power. Additionally, the overwhelming caseload directly causes by the state of emergency decrees, the swift pace of changes in the legal landscape, forced transfers and dismissals and political appointments have raised serious concerns regarding the independence and impartiality of Turkish judiciary. But there is also the important issue of judicial restraint. As we have seen in many post-coup cases including the cases of Osman Kavala and Selahattin Demirtas, the Turkish judicial system has voluntarily abdicated their responsibilities and over time, Turkish Government has increasingly relied on court to silence and hound its critics. This tells us only one thing and that is the simple yet sad reality that the Turkish criminal justice system is in serious crisis. The independence of the judiciary from a first instance court to the Turkish Constitutional Court cannot be trusted. The core of the Turkish justice system needs to be rebuilt to establish faith and trust in the rule of law and the Turkish judicial bodies more generally.
The ECtHR’s political stance against Gulenists
Due to dysfunction of the Turkish judicial system, thousands of people filed applications at the European Court of Human Rights to seek their rights. Unfortunately, such organizations also act indifferently and stall the cases almost indefinitely. Why do you think the international organizations are deliberately slow about the cases from Turkey and especially about the appeals made by the sympathizers of the Gulen Movement? Do you think this is a normal judicial procedure?
Regrettably this is normal state of affairs. Delays, for example, in the processing of cases at the ECtHR is a structural problem and this is not limited to the cases coming from Turkey. The ECtHR deals with a substantial caseload from various countries and this leads to substantial delays and prolonged waiting times. Other prominent international legal bodies such as the United Nation bodies have also similar delay-ridden complaint mechanisms and they review disputed measure in retrospect. They have no alternative but to give state the benefit of the doubt. Additionally, the complexity of cases might contribute to extended legal proceedings and the cases from Turkey are really complex cases. But if one were to take a slightly optimistic view, as detailed in our report, Turkey’s post-coup practices have been strongly denounced by the ECtHR and other United Nations bodies. These authoritative bodies have not shied away from highlighting Turkey’s egregious breaches of fundamental human rights. However, one should also note that legal remedies alone are insufficient to address the extensive and systematic issues stemming from the oppressive exercise of state power in post-coup Turkey. This implies that a comprehensive and effective solution necessitates a balanced approach combining both legal and political strategies, and with a greater emphasis on the latter. On that, we can all agree that the political responses of the international community especially the Western countries have been notably restrained and ineffective. This has been really unfortunate.
Protest against the ECtHR
Thousands of people gathered in front of the ECtHR and expressed solidarity with the victims of Turkey’s post-coup crackdown. They demanded expedited justice. Related to the previous question, what do you think about this protest at the ECtHR? How do you see the position of the Gulen Movement in organizing such protests?
Such protests clearly reflect a desire to increase awareness to the dismal state of affairs in Turkey. In this regard, I believe these protests hold the potential to serve as a platform for victims to voice their grievances and to advocate for the cause of justice.
Crimes against humanity in Turkey
While all these injustices continue unabated, thousands of people suffer under state pressure and daily witch-hunt measures across Turkey. Some term this as imposing civil death upon innocent people and some say it is modern-day genocide. Amidst continuous discussions, what do you think about these events and human rights violations and injustices in Turkey with reference to these discussions? From the legal perspective, what is actually happening in Turkey?
The legal classification of the ongoing systematic human rights violations in Turkey is a subject to extensive discussion and speculation nowadays. As you have rightly pointed out, some argue that the situation amounts to a civil death and a genocide. While these viewpoints highlight the severity of the situation, I believe we should exercise caution in employing such charged and loaded terminology. From a legal standpoint, I align with the assessment put forth by the Turkey Tribunal where I had the privilege of serving as a rapporteur. The Tribunal’s conclusion resonates with the potential classification of the severe human rights violations and due process infringements in Turkey as possible instances of crimes against humanity. I believe this is a fair conclusion.
Turkey Tribunal as an Opinion Tribunal
You mentioned about Turkey Tribunal and that is also discussed a lot by experts in the field and you said you also served as a rapporteur in the Tribunal. Could you please tell us more about it?
Turkey Tribunal is a non-governmental peoples’ tribunal aiming to report and document serious allegations of human rights violations committed by Turkish state authorities. The Tribunal operated on six themes – torture, enforced disappearances, impunity, freedoms of press and expression, judicial independence and crimes against humanity and rapporteurs drafted extensive expert reports on each of these themes. The Tribunal held its main session in Geneva on 21-24 September 2021. Over the course of three days, witnesses had been heard, rapporteurs had presented their reports and on the final day, judges issued a final opinion. As I have already mentioned, the judges found that the acts of torture and enforced disappearances committed in Turkey, in applications brought before an appropriate body and subject to the proof of the specific knowledge and intent of the accused, could amount to crimes against humanity. Based on this finding, a team of legal experts submitted a communication to the Office of Prosecutor of the International Criminal Court (ICCO) in February 2023. This communication argues that even though Turkey is not a party to the ICC’s Rome Statute, the ICC’s jurisdiction has been established with respect to crimes against humanity allegedly perpetrated by Turkish state officials on the territory of countries that are party to the Statute. We will have to wait and see if the Prosecutor Office would take this communication seriously.
The Turkish Anti-Terrorism Legislation endangers rights
Returning back to our talks, we have talked about terrorism cases and so-called terrorists under the incumbent regime in Turkey. What is terrorism and terrorist according to the Turkish law? How are they defined? Are these definitions compatible with the international laws?
The Turkish Anti-Terrorism Legislation No. 3713 provides definitions of terrorism and terrorist offender under its first two articles so anyone who is interested should take a closer look at these definitions. The core problem here relates to the fact that these definitions are really subjective and potentially open to misuse. As has been found by the ECtHR most recently in the Selahattin Demirtas case, the definition of terrorism under this Legislation is ambiguous and expansively worded falling short of the level of legal certainty required by international human rights standards. The issue at hand transcends mere theoretical considerations and it has implications in the real world. States with authoritarian tendencies such as Turkey, Azerbaijan and Russia are increasingly misusing these definitions to unjustly and arbitrarily criminalize even peaceful forms of activities by political opponents, human rights defenders, journalists, and others. So there is clearly an urgent need to counteract the misuse of terrorism definitions in order to ensure the protection of human rights on a global scale.
Erdogan won all elections since 2002 and had a crowning experience in the 2023 presidential election. The EU countries and the European leaders celebrated Erdogan’s win with ‘joy.’ In the UK, The Telegraph informed its readers about the win of Erdogan as ‘Europe breaths sigh of relief as Erdogan remains in power in Turkey.’ From where I stand, I saw an opportunist Europe. How about you? How do you see this love and support of the EU countries for the Erdogan regime known for its human rights violations and injustices in Turkey?
The appeasement policy of Europe towards Turkey is a sad reality. Despite serious human rights and rule of law issues, the EU continues to do business as usual with Turkey. The argument behind this policy becomes apparent in Turkey’s roles as a geo-strategic partner in addressing the Syrian refugee crisis, combating ISIS, and contributing to the Ukraine-Russia conflict. These leverages Turkey holds as a partner may explain why Western democratic and rule of law-abiding powers (and institutions) have been reluctant to apply pressure on Turkey even in the face of systematic human rights violations. But this phenomenon clearly extends Turkey. Countries often find their foreign policy goals, security and trade agreements more important than human rights issues. A striking case in point is the silence of Canada and the United Kingdom regarding Saudi Arabia’s human rights record, owing to their arms trade deals. Equally noteworthy is Turkey’s silence on China’s Uyghur minority issue, driven by its growing economic ties and shared ideological affinity with China. So ultimately countries clearly prioritize their political interests over human rights principles. Such actions unfortunately hold the potential to undermine efforts aimed at promoting democracy and safeguarding human rights.
Thank you Dr. Emre for giving us from your precious time and answering our questions.