Document: UN Special Rapporteur on the right to freedom of opinion and expression to his visit to Turkey, 14-18 November 2016…

ANKARA (18 November 2016) – At the invitation of the Government, I spent this week in Turkey to examine the protection and promotion of the freedom of opinion and expression under international human rights law. Thanks to the support of the Ministry of Foreign Affairs (MFA), which organized my government meetings in Ankara, I met with senior officials at the MFA, the Ministry of Justice, the Prosecutor’s Office, the Ministry of Interior, the Parliamentary Human Rights Inquiry Committee, the Directorate General of Press and Information, the Information and Communication Technologies Authority, the Constitutional Court and the Court of Cassation. I was unable to arrange a meeting with the office of the President or Prime Minister but welcome the opportunity to do so in the future. That said, I want to begin by thanking the Government for its hospitality, its work to make this a successful mission, and its commitment to United Nations mechanisms.

With the support of the UN Country Team based in Ankara, I also met dozens of individuals in Ankara and Istanbul, such as journalists and writers — including several detained at Silivri and Bakirköy prisons in Istanbul — representatives of non-governmental organizations, lawyers, artists, academics, and politicians.

As special rapporteur, in all cases I examine freedom of expression issues according to the well-accepted sources of international human rights law. Turkey is a party to the International Covenant on Civil and Political Rights (ICCPR), Article 19 of which is my main source for analysis, and the European Convention on Human Rights. Both protect everyone’s right to hold opinions without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media. The right to freedom of opinion permits no exception or restriction. Article 19(3), however, acknowledges that States may restrict freedom of expression so long as the restriction meets the conditions of legality, necessity and proportionality, and legitimacy of the objective. Article 4 of the ICCPR permits derogations from freedom of expression (but not opinion) during declared states of emergencies, but only where strictly necessary according to the exigencies of the situation.

This is a preliminary set of observations in very brief form, drafted at the conclusion of a full week of fact-finding. It covers a fraction of all of the issues I identified this week and in my research leading up to this mission, and I encourage individuals to continue to reach out to me with their concerns as I draft the full. I will be presenting a full official report to the Human Rights Council in March 2017, and I am mainly prioritizing immediate concerns now while others may yet be addressed in the official report.

An Overview of the Situation

It is noteworthy and important that Government officials throughout the week expressed Turkey’s commitment to the freedom of opinion and expression. They identified a variety of domestic protections, such as those found in the Constitution (Articles 26 and 28) and the judiciary’s review of alleged violations, and the supervisory role played by the European Court of Human Rights. This commitment, if realized, leaves room for optimism about the possibilities for the observance of fundamental freedoms in Turkey’s future.

Every government official I met emphasized the perception that Turkey faces grave threats. The 15 July 2016 coup attempt is appropriately regarded as an assault on Turkish democracy, during which the entire political spectrum rallied around Turkey’s democratic institutions. Hundreds were killed, and the shock of F-16 bombs crashing into Parliament’s grounds, or of tanks on the streets, continues to resonate. One evening, a guide at Parliament showed me the twisted and bombed-out metal that, had the attack taken place at daylight, could have led to countless other deaths.

Turkey also faces threats of terrorism from various actors. ISIS and PKK attacks stand out as horrific examples. Turkey also faces a massive refugee crisis that undoubtedly weighs in the thinking of government officials charged with protecting public order. I have genuine sympathy for the dilemmas the people of Turkey face in confronting terrorism and threats to democratic institutions while at the same time protecting and promoting freedom of expression.

Without a doubt, Turkey faces threats that may justify restrictions under Article 19(3) to protect national security and public order. My concerns center, therefore, not on the fact of restrictions but on the overwhelming number, depth and seeming disproportionality of restrictions that not only touch every aspect of public and private life in the country but are, to my mind, leading Turkey away from the fundamental guarantees available in every genuinely democratic society. In this I am not alone. To name two, the Human Rights Commissioner of the Council of Europe and the European Commission report on Turkey have raised alarms in recent weeks, and for very good reason.

To put the situation in terms of my evaluation under Article 19, I ask the following questions: Are the restrictions on expression necessaryto protect national security or public order?  Are they proportionate? Do the restrictions amount to interference with opinion, which are impermissible under Article 19? Do the processes of challenge and appeal, if they exist at all, comply with the requirements of legality and rule of law?

Allow me to define the terms of this evaluation by way of illustration, underlining the grave concerns I have about the legal situation for compliance with freedom of expression norms:

  • When Article 19(3) requires me to examine whether a restriction is “provided by law”, the first condition of legality, I ask questions such as: Is the law on which a restriction is based specific enough to allow individuals the knowledge of what will be considered terrorism or support for terrorism? Is the restriction so vague as to leave excessive discretion in prosecutors, judges or others? Can a journalist or Facebook poster or tweeter, for instance, know in advance when criticism of government may lead to a defamation lawsuit by a senior official or an accusation of terrorist propaganda? Do they have meaningful avenues to challenge the restriction imposed?
  • When Article 19(3) requires me to examine necessity, I ask questions such as: Is the firing of this academic or these academics necessary to protect against terrorism? Are there other approaches less restrictive than removing thousands of academics from their jobs? Is the shutting down of a media house actually and effectively protect against terrorism, or may targeted approaches both deal with the threat and yet enable access to information?
  • When Article 19(3) requires me to examine proportionality, I ask questions such as: Is it excessive to jail a 71 year-old woman for terrorism because she served on the advisory board and as an occasional editor for a Kurdish publication? Or to jail columnists and editors and publishers for a news publication? Or to criminally prosecute a person for criticizing the President?

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