The European Court of Human Rights (ECtHR) has played a crucial role in the construction and development of democratic societies in Europe since its establishment. The systems and concepts it has developed in the field of human rights are of great importance.
Since the corruption investigations of December 17-25, 2013 in Turkey, and especially the attempted coup on July 15, 2016, it is evident that the institutions, structures, and concepts of the “rule of law” in Turkey have suffered erosion and some have completely collapsed. This situation is confirmed by numerous international investigations, statistics, and reports, as explained above.
In this regard, the ECtHR should make decisions that support the democratic order and the rule of law, in accordance with its established case law and accumulation, by respecting human rights and dignity.
In the recent decision of Hidayet Karaca (25285/15), the ECtHR ruled that there was a violation of Article 5/3 of the European Convention on Human Rights (ECHR) due to the excessive length of pre-trial detention and a violation of Article 5/4 as there was not sufficient guarantee that the judges deciding on the detention or continuation of detention were “independent and impartial.”
However, the ECtHR rejected the complaints of Hidayet Karaca regarding the lack of sufficient reasonable suspicion for arrest, violation of freedom of expression, and violation of the principle of legality in crime and punishment.
The ECtHR’s decision in the Karaca case not to find a violation of freedom of expression was disappointing. Freedom of expression is the cornerstone of a democratic society. The determination and implementation of what is best for the people can only be achieved through the detailed discussion and debate of all ideas in an atmosphere of complete freedom. The direction and outcome of opening up expression are democracy, development, civilization, and progress, while its restriction leads to dictatorship.
The press is the most effective environment for the realization of freedom of expression. Therefore, the ECtHR has recognized and protected freedom of expression and press freedom as the highest values in its case law since its establishment. This is because individuals can only be informed about what is happening around them through the press. They can also convey their own ideas to others through the press and acquire and discuss other ideas and opinions, express their own interpretations and judgments to others.
Another important function of the press is to act as a watchdog on behalf of the public regarding corruption and irregularities. The ECtHR’s description and definition of the press are significant: “The press is the watchdog of society.” When you enter this concept in the HUDOC search section, hundreds of decisions come up. This is because the ECtHR analyzes every relevant dispute by drawing attention to the role and importance of the press and examines the dispute.
Therefore, press members have a different privilege, special protection, and shield in terms of freedom of expression before the ECtHR. Some of the concepts and principles developed by the ECtHR in this regard are as follows:
The press may present news or articles in an exaggerated manner to make them more attractive. Journalists can use technical means, literary tools, especially cartoons, humor, and satire, to attract the reader’s attention. All branches and possibilities of art, especially literature, can be mobilized for the execution of press activities. In the intellectual debate among rival, opposing, and enemy factions, it is necessary to be as tolerant as possible. FETHULLAH GÜLEN’S SPEECH
In his speech on April 6, 2009, Fethullah Gülen explained the meanings, origins, and areas of use of the concepts of “religious reaction” and “apostate” in response to a question. He stated that a group had been provoking society to divide and fragment it from the beginning, starting from the Constitutional Period until the February 28 Process, disguising themselves as Muslims and carrying out various actions within society to incite the security forces against religious individuals, providing concrete examples to illustrate and explain this. Then he mentioned rumors about provocative actions aimed at dividing society, which were also on the agenda at that time. This is the core of the dispute and the focus of the ECtHR.
It should be noted that in the aforementioned speech, Fethullah Gülen draws attention to this point, emphasizing the need to beware of the provocations of hidden and dark forces. Furthermore, he emphasizes human dignity and honor and lists the parameters for living together in peace. He does not make a direct accusation, does not refer to a specific act, but talks about possible plans and dangers. It is understood that as a leader of public opinion, he wants to alert the public and take precautions before provocations occur.
According to the claim and acceptance of the ECtHR, afterwards, Hidayet KARACA had a phone conversation with Fethullah Gülen, and then additions were made to the script of an episode of the TV series aired on Samanyolu TV, similar to the statements made in the Bamteli conversation.
COUNTER-GUERRILLA ACTIVITIES AND THE AK DECISION
First and foremost, the activities of structures such as Gladio, Counter-Guerrilla, Special Warfare Department, Mobilization Investigation Board, which occasionally change their appearance and title but operate outside the democratic system and legal order, are known to everyone. The crimes they have been involved in, the murders they have committed, the social events and uprisings they have caused and directed are well known. It is not the subject of this article to describe concrete examples and confessions of the planners. White Toros cars, nowadays Black Transporters, acid wells, especially the activities of kidnapping individuals from the Southeast region, are facts known even by ordinary citizens. Moreover, the archive of the 2nd Chamber, which issued this decision, and the ECtHR for the past 40 years are full of details of these dark forces’ actions, such as murder, provocation, kidnapping, and killings. Therefore, the esteemed judges of the ECtHR, especially those in the Southeast, cannot claim that they have no knowledge of what has been happening in the past 40 years.
At this point, it is useful to mention the concept and reality of Gladio in the context of developments in NATO countries and the European axis. As is known, when the Berlin Wall and the Iron Curtain were demolished in the early 1990s, the illegal activities, crimes, and murders of unregistered and uncontrolled paramilitary structures based in the United States within NATO countries came to light. At that time, there were understandably surprising and harsh reactions from the European public opinion. In response to this, the European Parliament adopted a decision on November 22, 1990, calling for the immediate dismantling of unregistered and uncontrolled intelligence and operational organizations (European Parliament resolution on Gladio). The mentioned decision contains quite remarkable statements from our perspective:
“C. Fearing that the said secret organization may have intervened illegally in the internal political affairs of the member states and may still be doing so,
Whereas, as proved by various judicial investigations, military intelligence organizations (or their uncontrolled units) have been involved in serious acts of terrorism and crime in certain member states,
Whereas these organizations, as they are not subject to any parliamentary control, have operated and continue to operate entirely illegally and persons occupying the highest positions in the state and constitutional bodies have not been informed about these matters,
Calls on the governments of the member states to dissolve all secret military and paramilitary organizations,
Calls on the judicial authorities of the countries where the presence of these military organizations has been established to fully clarify their nature and activities and, likewise, to shed light on any actions they may have carried out that could destabilize the democratic structure of the member states.”
By the way, it should be noted that after the above-mentioned decision, all paramilitary structures in NATO countries, except for Turkey, were disbanded.
If we return to our subject. It should be noted that Fethullah Gülen draws attention to this very point in the mentioned speech and emphasizes the need to beware of provocations by hidden and dark forces. Furthermore, he emphasizes human dignity and honor and lists the parameters for living together in peace. He does not make a direct accusation, does not mention a specific act, but talks about possible plans and dangers. It is understood that as a leader of public opinion, he wants to alert the public and take precautions before provocations occur.
Therefore, if such a conversation took place, considering Fethullah Gülen’s speech as a criminal element and, on the contrary, viewing it as a commendable behavior would be appropriate.
In addition, there is a significant procedural issue in the reference made by the ECtHR to the telephone conversation. Because the telephone conversation was unlawfully wiretapped and recorded. Apparently, the recordings monitored by intelligence agencies were leaked to the press and the public, and then Turkish courts and the ECtHR used the contents of this conversation against the applicant as “open-source information.” It is an unquestionable requirement that evidence obtained in criminal proceedings in violation of procedural rules should be disregarded and excluded from the case. Therefore, relying on these telephone conversations is clearly illegal. However, even if it is assumed for a moment that these telephone conversations were obtained in accordance with the law and based on a judicial decision, there is no legal problem due to the reasons explained above.
INVESTIGATIONS OF DECEMBER 17-25, 2013, AND PROJECT COURTS
The conflict between the Gülen Movement and the Government, or rather Erdogan, in Turkey began with the corruption investigations on December 17-25 and has continued to this day with what Erdogan calls the “witch hunt” gaining momentum. The reason that drew Erdogan’s and the government’s hostility is the fact that some government officials and their close relatives’ names were mentioned in the investigations.
Erdogan initiated a comprehensive purge process, claiming that the investigations and operations were an attempted judicial coup against the elected government. This process has continued to this day and has resulted in the dismissal of approximately 6,000 judges and prosecutors, 10,000 academics, and 200,000 public officials.
At the beginning of the process, Erdogan stated that they were working on a “project” and said, “We will take revenge on them later.” The Sulh Criminal Judgeships of Peace (SCJ) are the reasons behind this, which also constitute the basis of this application. Afterward, these courts became known as “Project Courts” in the public opinion. Initially, when more than 100 judges in Istanbul, where the controversial decisions were made, including pre-trial decisions such as searches, arrests, took into account their working hours, the decisions were made by more than 10 judges after the establishment of SCJs. This situation has turned the procedural stage of the criminal proceedings and its decisions into a closed circuit system, violating the principle of “independence and impartiality of the judiciary,” and has been the subject of criticism and reports from various international organizations, including the Venice Commission and the Council of Europe Commissioner for Human Rights.
Indeed, after the establishment of “Project Courts,” two things rapidly happened in Turkey. First, almost all investigations and prosecutions against Erdogan, his close circles, and those close to the ruling party (AKP) ended with dismissals or acquittals. Second, almost all institutions and concepts of the rule of law, especially “judicial independence,” became dysfunctional. As a matter of fact, in all worldwide statistics and reports known as parameters of the rule of law, such as the “Rule of Law Index” and the “Judicial Independence Index,” Turkey has plummeted. The European Network of Councils for the Judiciary rejected the membership of the Supreme Council of Judges and Prosecutors (HSK) on the grounds that it was “not independent and impartial.” Similar examples and facts can be multiplied.
On the other hand, the government’s arguments and paradigm regarding the investigations of December 17-25 are also problematic. The government claims that these operations were an attempted judicial coup against the government. In fact, for 7 years and still ongoing, according to official announcements, in the investigations and prosecutions, which reach up to two million, indictments and reasoned judgments are filed or conviction verdicts are established based on this claim and acceptance.
However, two major defendants of these investigations, who were charged with serious and large-scale crimes such as international money laundering, arms and gold smuggling, and violation of international banking regulations, Reza Zarrab and the Deputy General Manager of Halkbank, Hakan Atilla, went to the United States and surrendered. Reza Zarrab, during the trial, reached an agreement with the prosecution and the court and revealed the bribes he gave to Erdogan and other government officials, the corruption network and scheme, and the crimes committed in all their nakedness and details. Both defendants were convicted by the U.S. judiciary. In other words, the investigations labeled by Erdogan and the Turkish government as a “judicial coup” were confirmed and corroborated by an independent U.S. judiciary. Moreover, security officials involved in these investigations were rewarded for their achievements in the United States. Since these decisions have become final and enforceable, the accuracy of the investigations of December 17-25 and the government’s claims and accusations has become an established fact. The members of the ECtHR 2nd Chamber who issued the decision are certainly well aware of all these processes and facts and closely follow them, to the extent allowed by the conditions.
We have listed some of the concepts regarding press freedom and freedom of expression above. In addition to these, another concept and principle that should perhaps be placed at the forefront is the concept and principle of “approaching human rights with respect.” Accordingly, when resolving disputes, human dignity and honor should always be given priority, and in doubtful and ambiguous situations, the interpretation should be in favor of human dignity.
This article first appeared at TR724.com on July 11, 2023 and translated from Turkish to English by Politurco.