Cumhuriyet Newspaper journalist Musa Kart – one of the seven jailed newspaper staff released pending the end of their terrorism trial. Istanbul, Turkey, July 28, 2017. Depo Photos/PA Images. All rights reserved.The cartoonists, the lawyer, the board member, the Editor-in-Chief and many of his columnists. Indeed, no one was spared on October 31, 2016 as the police launched a sweeping crackdown on Cumhuriyet, arguably Turkey’s most important independent public interest newspaper. By November 5th, a dozen of its key personnel were being held in pre-trial detention in Sillivri maximum security prison under Turkey’s anti-terrorism law. While the possibility of reprisals against Cumhuriyet always remained a possibility given Turkey’s growing reputation as “the world’s biggest prison for media personnel”, I was alarmed at how quickly the state of emergency imposed by the government after the failed coup of July 2016 turned into a state of terror. Indeed, during the second hearing of the Cumhuriyet trial on September 11th, I bore witness to the full force of state power, with an intimidating phalanx of some hundred armed security personnel stationed menacingly outside the courtroom in Silivri.
While Cumhuriyet’s lawyers began the daunting task of defending their clients against the bewildering charge that they had carried out the activities of armed terrorist organizations of which they formed no part I reflected with no small measure of despondency on what we could possibly do to support them, as a European Foundation with offices in Stockholm and Geneva. Indeed, the Right Livelihood Award Foundation had announced Cumhuriyet as one of its 2016 Laureates just a month earlier, recognizing the newspaper for “for their fearless investigative journalism and commitment to freedom of expression in the face of oppression, censorship, imprisonment and death threats.”
Despite the prevailing mood within civil society circles in Europe that Turkey was a lost cause when it came to advocating for human rights, I nevertheless decided to raise the case of the detained journalists with a couple of UN Special Procedures – independent experts mandated to advise the UN Human Rights Council. It was fortuitous that one of them, David Kaye, special rapporteur on the freedom of opinion and expression, happened to be travelling to Turkey on an official visit in November, and I stressed to his office the importance of visiting the jailed journalists. In the event, the government permitted him to visit five of them, and Mr. Kaye bravely called for their immediate release at his end of mission press conference in Ankara, and again, on the floor of the UN Human Rights Council in Geneva in June 2017.
Significantly, he made it clear that no one should be held in detention for expressing opinions that “do not constitute an actual incitement to hatred and violence”, called for a review of the anti-terrorism law, and observed that the detainees had been restricted from accessing their lawyers on a number of occasions. While no one was freed following the special rapporteur’s observations, his visit had brought to light the harsh conditions that the journalists were enduring, and his comments pierced the government’s contention that their pre-trial detention was necessary, proportionate and legitimate.
Energized by this development, I decided to bring a complaint before the UN’s Working Group on Arbitrary Detention (WGAD), another special procedure composed of international experts adjudicating whether the deprivation of individuals’ liberty should be considered arbitrary based on a range of objective criteria. I believed that a ruling in the journalists’ favour would further weaken the prosecution’s case that continued pre-trial detention was justified, and demolish the legal sophistry that the Turkish government relied on to mask its absolute intolerance towards any journalist who scrutinized its actions.
The WGAD’s lengthy procedure, which provided space and time for the Turkish government to respond to my complaint, and for me to make further comments, stretched into April 2017, by which time the detainees had been incarcerated for some 150 days. By April, the prosecution had issued an indictment calling for long jail terms – up to 43 years – for the journalists. Back at the WGAD, the Turkish government called for my complaint to be dismissed, both on technical grounds, arguing that I had not exhausted domestic remedies, and on the ground of merit, asserting that its derogation to certain provisions of the International Covenant on Civil and Political Rights (ICCPR) in light of the state of emergency meant that the length of pretrial detention was reasonable. The government denied that the subject of the investigation of Cumhuriyet was the critical nature of articles written by its journalists, and harped repeatedly on the threats faced by Turkey from terrorist organizations as a way to justify its actions.
Given the broader context of the situation in Turkey, where 150 journalists are incarcerated, the flickering flame of freedom of expression received an unexpected fillip when the WGAD announced its ruling in late July. Not only did the panel hold that the detention of the journalists was arbitrary, and call for them to be released immediately and afforded rights to compensation, but its well-written ruling strengthened international law considerably by clearly limiting what measures against journalists were permissible in the context of the global war on terrorism.
The well-written ruling strengthened international law considerably by clearly limiting what measures against journalists were permissible in the context of the global war on terrorism.
Notably, the WGAD rejected the government’s argument that it should not address the present case due to the prevailing state of emergency in the country, stating that “owing to... the judicial system being overwhelmed through the receipt of large amounts of cases derived from such an emergency situation, the communications procedure of the Working Group is one of the few international mechanisms of redress for people who are held under any form of arbitrary deprivation of liberty.” Moreover, it found that the restrictions on the Cumhuriyet detainees’ right to a fair trial, which the special rapporteur had pointed out, were “of such gravity” as to give their deprivation of liberty an arbitrary character.
Refusing to be swayed by the government’s attempt to shield its actions on the grounds of preserving national security, the WGAD considered that “there is no plausible link between the stated aim of rooting out the coup plotters and the suppression of the press”, declaring unambiguously that detention of the Cumhuriyet journalists was due to their exercise of their right to freedom of expression under Article 19 of the Universal Declaration of Human Rights and the ICCPR. The WGAD’s rich opinion provides a timely warning that vaguely worded anti-terrorism laws victimize the “democratic opposition, as distinct from the violent opposition” and provides guidance on principles to which counter-terrorism measures must adhere in order to be compatible with international human rights law.
Though the ruling represented a resounding moral victory, I was not sure if, and if so, how, the WGAD’s opinion would provide relief for the detainees. In the event, the opinion was used by Cumhuriyet’s lawyers as part of their defence statement when the detainees finally saw a courtroom in late July. On July 27, the presiding judge granted a conditional release of 7 of the journalists, whilst keeping a further five, including Editor-in-Chief Murat Sabuncu in detention. Did the findings of the Special Rapporteur and WGAD have any bearing on this small but not insignificant triumph of justice in the context of mass detention of journalists and political prisoners in Turkey?
As is so often the case, it is impossible to tell. It is nonetheless significant that even at a time when several states are actively challenging well-established human rights norms in practice, Turkey continues to participate in international human rights mechanisms. That the Turkish government took the time and energy to counter the findings of the special rapporteur at the UN Human Rights Council in Geneva, and respond to my complaint at the WGAD is commendable. This highlights the continued legitimacy and prestige that governments derive from participating in international processes. Even increasingly authoritarian regimes want to be able to present the veneer of cooperating with UN institutions to give themselves acceptability within the international community. Human rights advocates, then, should not give up on but rather make robust use of international mechanisms to scrutinize governments and hold them accountable to the international treaties that they themselves have ratified.
It is evident that the Cumhuriyet trial is far from meeting international fair trial standards. As Murat Sabuncu argued from the dock on September 11th, Cumhuriyet was not being targeted for supporting terrorist organisations, but for their journalism. After thirteen and a half hours of hearings, the judges declined to release any of the five Cumhuriyet staff who remain in custody. From the questions they repeatedly asked the defendants and their lawyers, they seemed already convinced of the government’s contention that Cumhuriyet had changed its editorial policy to benefit terrorists.
When the judges read out their ruling close to midnight, they did so with fifty security personnel in bulletproof armour standing guard inside the courtroom, which raised serious questions on the impartiality and independence of court proceedings. Despite these concerns, I would urge international observers to continue to monitor both the Cumhuriyet trial and other trials of human rights defenders in Turkey, given the visible signal this sends to these embattled defenders of free speech – that we stand in solidarity with them in these truly difficult times and will not give up on advocating for their release.
It is now clear following the September 11th hearing that Turkey will not fully comply with the special rapporteur’s findings or the WGAD’s determination in the Cumhuriyet case. But having participated in these international processes, they may at the very least feel obliged to comply partially. Such small victories have the potential to both secure independent journalists their freedom and breathe new energies to an imperiled global human rights movement.