Discarding Reform, Turkey Uses the Law to Repress
By Robert Mahoney
Turkce
A critical journalist in Turkey these days needs a lawyer on standby.
The press is laboring under a creaking judicial system and a panoply
of antiquated and vague legislation that officials and politicians of
every stripe find irresistible as a weapon against muckraking
reporters and critical commentators.
After several years of legal and constitutional reform prompted by
Turkey’s application for European Union membership, moves to lighten
the dead hand of the law on journalists are running out of steam. The
EU, beset by economic woes and wary of further eastward expansion, has
grown cool to the idea of embracing 75 million Turks. Prime Minister
Recep Tayyip Erdogan, buoyed by a landslide third-term election
victory in June, is in no mood to be lectured by European officials on
the human rights shortcomings of his administration. EU accession
talks and, with it, Turkish law reform are treading water.
Besides, Erdogan is presiding over a country with 9 percent annual
economic growth and enhanced political clout in the region thanks to
deft diplomatic maneuvering that put Ankara on the right side of the
Arab uprisings in 2011. The United States seems wary of calling out
Turkey on its human rights and press freedom record. Washington is
comfortable with the narrative that Turkey, a NATO member and crucial
U.S. ally in the region, is a progressive, secular democracy and a
model of free speech compared with its neighbors Iran, Iraq, and
Syria.
But for journalists, particularly Kurdish and leftist ones, progress
in freedom of expression has not kept pace with political and economic
advances. “Turkey is more open than before, but on press freedom we
have more trouble,” said Rusen Cakir, a journalist for NTV and
columnist in the daily Vatan. “It is really very contradictory.
Western people also cannot understand what’s happening in Turkey. On
the one hand, Turkey is a kind of model to the Middle East; on the
other hand, Turkey is bad news for freedom of the press,” he said.
“Turkey is really difficult to understand.” Cakir was referring to the
complex interplay of political, bureaucratic, and commercial interests
that have polarized Turkish media and stifled much investigative
reporting. These competing forces are underpinned by anachronistic
laws and a sclerotic judicial system that are easily turned against
the press.
Journalists and press groups estimate there are 4,000 to 5,000
criminal cases currently open against reporters. The cases involve
charges such as criminal defamation, influencing the outcome of a
trial, and spreading terrorist propaganda. The bulk of these cases
have not resulted in convictions historically, but the endless court
proceedings and legal costs have had a severe chilling effect,
according to reporters, media analysts, and lawyers interviewed by CPJ
throughout 2011. Prosecutions have intensified since authorities in
2007 first detailed the “Ergenekon” conspiracy, an alleged nationalist
military plot to overthrow the government. Journalists’ sense of
security nose-dived in March 2011 with the arrests of leading
investigative reporters Ahmet Sik and Nedim Sener on Ergenekon-
related charges, and then again in December with the government’s
roundup of more than two dozen journalists on vague propaganda
allegations.
Sik, who along with Sener, was still in pre-trial detention in late
year, said he was arrested because he was writing a still-unpublished
book, The Imam’s Army, on the Gulen Islamic movement, which is close
to the ruling Justice and Development Party (AKP). Erdogan compared
the book to a bomb. Sener is best-known for his work on the
investigation into the murder of Turkish-Armenian journalist Hrant
Dink, which has still not netted the masterminds of the crime.
Ergenekon comes against the backdrop of a shift in political and
economic influence away from the staunchly secular and nationalist
military to the AKP, a socially conservative movement rooted in Islam
that was first elected in 2002. The legal system has become a
battleground between the AKP and Kemalists, ultranationalists of the
old order known as the “deep state,” with journalists as collateral
damage. Add to this a concentration of media ownership among
conglomerates reluctant to jeopardize their vast non-media business
interests by angering authorities, and journalists of all political
persuasions feel exposed. The outcome in many cases is chronic
self-censorship by reporters and commentators fearful of prosecution
or losing their jobs.
“We oppose every kind of authoritarianism,” said Markar Esenyan, news
coordinator of the tiny independent daily Taraf, the first Turkish
partner of WikiLeaks, the anti-secrecy organization. “That’s why there
are some 250 cases against the paper. The government and the military
are against us.” Taraf, often an outlier in the media scene, is in the
mainstream in this regard. Nearly every newsroom in Istanbul has a
clutch of reporters who are in and out of court every month. And
prosecutors have a broad palette of laws to choose from.
“I can quote at least 40 articles in the Turkish penal code that are
directly or indirectly limiting freedom of expression–and some of
them are used in a terrible manner,” said Orhan Cengiz, a lawyer and
the head of the Human Rights Agenda Association. He laments what he
sees as a decrease in political pressure by Brussels on the AKP
administration to reform or repeal some of these laws. “The European
Commission regularly published reports criticizing Turkey and made a
kind of road map for further reforms. Unfortunately, for the past
couple of years, we have been losing this EU momentum,” he said. “It
is a huge loss for Turkey. Both sides are tired. So many chapters [in
the accession talks] are blocked. Between 2002 and 2005–even 2006–we
had fantastic progress by this government because the EU used to exert
pressure, but we don’t have similar pressure right now.”
After amendments to the Turkish Press Act were enacted in 2004,
restrictions eased, at least for non-Kurdish journalists, in covering
the role of the military in civilian life and the Kurdish independence
struggle in southeast Turkey. But those gains were erased as new
pressures arose for journalists reporting on the AKP and its allies.
“The press freedom climate is like the Istanbul weather, always
changing,” said Nadire Mater, head of the independent news portal
Bianet. “One day, there’s an opening to the Kurds; the next, trials
are started,” she said, referring to the shift in the administration’s
attitude toward the independent press before and after Ergenekon.
Since Ergenekon and the investigations in 2009 into another
anti-government plot known as Sledgehammer, reporters covering the two
conspiracies have been hit with a series of prosecutions. Charges have
been filed under Article 288 (“attempting to influence a trial”) and
Article 285 (“violation of confidentiality of an investigation”) of
the penal code. If they obeyed the letter of these laws, reporters
covering police and court beats would be out of a job.
“In Article 288, the nature of the ‘influence’ is not defined, which
allows judges to loosely interpret it,” said Ash Tunc, associate
professor of media studies at Istanbul Bilgi University. “Because of
various punitive laws, the country remains a minefield for critical
reporting and investigative journalism.”
Legal landmines also include vague laws on criminal defamation,
insult, and violation of privacy. And it’s not just journalists in the
crosshairs. “Since taking office in 2002, Tayyip Erdogan used Article
8 of the penal code concerning crimes against dignity, and Article 125
on defamation, against stand-up comedians, political opponents,
political cartoonists, and even a student theater group,” Tunc said.
One of the most intimidating statutes, however, remains the 1991
Anti-Terrorism Act (Act 3713), which was prompted by the Kurdish
rebellion that began several years earlier. Articles 6 and 7 of the
law, the most frequently used against the media, outlaw the
publication of statements by terrorist organizations, for example, and
provide a one- to five-year prison term for making “propaganda” for
such organizations. In 2010, the European Court of Human Rights in
Strasbourg found that these provisions restricted freedom of
expression and contravened Article 10 of the European Convention on
Human Rights, to which Turkey is a signatory.
Ankara, however, has a history of ignoring the court. This was
highlighted in a July 2011 report by Thomas Hammarberg, human rights
commissioner for the Council of Europe. While welcoming progress on
some issues previously considered taboo, Hammarberg wrote that “the
conditions underlying the very high number of judgments delivered for
more than a decade by the European Court of Human Rights against
Turkey in this field have not been effectively addressed to date by
the Turkish authorities and continue to represent a constant, serious
threat to freedom of expression in Turkey. The recent waves of arrests
of journalists have particularly highlighted the reality of this
risk.”
The anti-terror law has been used repeatedly to close or suspend
Kurdish publications and jail Kurdish journalists, most prominently
Vedat Kursun, editor-in-chief of Turkey’s only Kurdish-language daily,
Azadiya Welat, who was sentenced to a total of 166 years in prison in
2010 on charges that included spreading propaganda. Kurdish
journalists, particularly those based in the southeast, complain that
critical reporting on the insurgency and the plight of ordinary Kurds
is severely hampered by constant fear of prosecution and lack of
access to Turkish civil and military officials. “The term ‘propaganda’
is not clearly defined,” Bilgi University professor Tunc said of the
Anti-Terrorism Act. “This code is randomly used against pro-Kurdish
media outlets and journalists who investigate the Kurdish issue.”
Turkish newspaper journalist and broadcaster Ertugrul Mavioglu, friend
and collaborator of jailed journalist Sik, is among the latter group.
Mavioglu is being prosecuted for propaganda because of a 2010
interview he conducted with Murat Karayilan, leader of the outlawed
Kurdish Workers Party, or PKK. The journalist faces up to seven years
in jail if convicted. Mavioglu faces an array of other charges as
well. “When I write, I have a strong feeling that something may happen
to me,” he said, referring to legal sanctions. That type of chilling
effect spread further and deeper across Turkey’s press landscape in
December when authorities detained at least 29 journalists on vague
allegations they had conducted “propaganda” for a Kurdish group the
government claimed was tied to the PKK. Despite international outcry,
authorities provided no supporting evidence for the widespread
crackdown.
Print and broadcasting are not the only victims of this restrictive
legal regime. Prosecutors have begun targeting the Internet in recent
years as well, notably blocking YouTube from 2007 to 2010 for videos
violating a long-standing law forbidding disrespect of Turkey’s
founder, Mustafa Kemal Ataturk. The blocking provisions were enacted
in 2007 under Law 5651 that the government said was put in place to
prevent child pornography and other criminal activity. However, many
academics and journalists see the statute as the greatest threat to
online freedom of expression in the country.
“The measures are used widely to block access to thousands of
websites,” said Yaman Akdeniz, author of a report on censorship for
the Organization for Security and Co-operation in Europe. “Actual
statistics are kept secret, but engelliweb.com estimates this number
to be around 15,000. A considerable number of politically motivated
websites are also blocked,” he said. These include many Kurdish sites,
journalists say.
Authorities went further in 2011, announcing plans to introduce
mandatory content filtering by Internet service providers. The plan,
which would have forced consumers to install software on their
personal computers with one of four content-filter settings,
galvanized the country’s budding digital generation. Organizing
themselves via social media, tens of thousands of protesters marched
through Istanbul in May. The government backtracked a bit, settling on
two content settings and, notably, making the filter optional for
consumers. Still, ISPs are required to provide the filters, and the
government sets the criteria for the filtering.
“Concerns remain for the system,” warned Akdeniz. “It is mandatory for
all ISPs to offer this [software] to users in Turkey, and any system
maintained and run by a government agency will attract suspicion and
criticism. Basically, we are still concerned, regardless of it being
optional.”
Blogger Erkan Saka thinks Law 5651 should be the prime concern. “We
should focus more on the existing regulation,” he said. “There are
still access problems to various sites. The way they are restricted is
the problem; it is very easy to restrict a website. That pattern
continues even if there are no filters,” he said. Cengiz, from the
Human Rights Agenda Association, agrees. “A judge in any corner of the
country can order a ban on an Internet site,” he said.
Some press freedom advocates see Turkey’s young people as a catalyst
for reforming the restrictive legal landscape for media. Forty-five
percent of the population is under 25.
“I am still hopeful for the digitally literate generation because the
use of social media is on the rise,” said Tunc, the professor. “It is
not a perfect solution, but there is a hope in the blogosphere, for
example, to bypass some of the oppressive laws and undertake
independent publishing. The young Turkish generation is incredibly
dynamic and active on the Internet, so now people are more aware of
what’s going on.”
A number of journalists maintain blogs, but blogging in Turkey
generally has been slow to take off, Saka noted. The real growth, he
believes, has been in social media. (Turkey ranks among the leaders
worldwide in Facebook use, according to the social network site.)
“Most journalists have yet to tap the opportunities of new media,”
Saka said. “Social media are not yet filling in the gaps in
investigation and coverage, but I’m optimistic that they will. Already
that is how you hear about some of the news.”
Some reporters say they are beginning to use Twitter for newsgathering
and dissemination. Several said that for the first time they ran a
story this year that was broken by “citizen journalists” on Twitter.
News of the death of a man during clashes between police and
anti-Erdogan protesters during election campaigning in May in the
northeastern city of Hopa came via Twitter because security forces
blocked many mainstream journalists from entering the area.
But the hope that the new generation will push back against state
control remains just that–a hope. “Lots of people are scared,” said
Akdeniz, “and therefore it remains to be seen whether people express
themselves freely online.” For that to happen, journalists believe,
all of Turkish civil society, with EU and other international support,
needs to push for reform of the legal system from root to branch. With
two of the country’s top journalists, Sik and Sener, behind bars and
dozens of others in severe legal jeopardy because of that system, the
urgency of the task is clear.
Robert Mahoney is deputy director of the Committee to Protect
Journalists. He has traveled to Turkey twice to do reporting for CPJ.
He interviewed more than 20 media executives, journalists, academics,
lawyers, and human rights defenders during a 2011 visit to the
country.
From: Emil Lazarian | Ararat NewsPress
http://www.cpj.org/2012/02/attacks-on-the-press-in-2011-turkeys-legal-problem.php