Discarding Reform,
Turkey Uses the Law to Repress

By Robert Mahoney

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 Erdoğan, 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, Erdoğan 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 Ruşen Çakır, 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.” Çakır 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 Şık and Nedim Şener on Ergenekon- related charges, and then again in December with the government’s roundup of more than two dozen journalists on vague propaganda allegations.

Şık, who along with Şener, 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 Gülen Islamic movement, which is close to the ruling Justice and Development Party (AKP). Erdoğan compared the book to a bomb. Şener 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 Asli Tunç, 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 Erdoğan 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,” Tunç 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 Kurşun, 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 Tunç 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 Şık, 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 Atatürk. 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 Tunç, 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-Erdoğan 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, Şık and Şener, 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.

Editor’s note: The original text of this piece was corrected to fix the spelling of Ash Tunç to Asli Tunç.