Abstract
There are three historical milestones in the evolution of the rights to freedom of expression and of the press in Turkey: (1) the process after ratification of the Constitution of 1961; (2) the continuity in the limitations placed upon fundamental rights and liberties; and (3) the acceptance of rights in the context of such limitations. Turkey has not yet experienced a process that would lead to an enduring acceptance of fundamental rights and liberties or their protection and development. Instead, the order institutionalized thus far is predicated upon the acceptance of fundamental rights and liberties together with the limitations upon them. In other words, limitations upon fundamental rights and liberties have thus far been accepted as the rule, while their protection has been accepted as the exception. This understanding must be challenged. Rights and liberties are essential. Only where there is a “social rule of law” where society has internalized the need for these rights as essential, can a country have a democratic and secular state. It is only under this kind of social order that the juridical, legislative, and executive bodies can function in balance, independent of one another and in impartiality, thus leading to the emergence of a democratic order.
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Notes
- 1.
The Anti-Terror Law was ratified on April 12, 1991. Law 3713 on the fight against terrorism has since been subject to multiple amendments and partial annulments by the constitutional court. The latest major amendment was introduced in 2006. It changed the definition of terrorist and terrorism-related offenses, and introduced new investigative measures regarding the prosecution of suspected terrorists. According to this law, punishment for terrorist offenses and offenses committed with terrorist aims shall be aggravated, and special procedural and executional rules apply.
- 2.
State security courts were established under the 1982 Constitution to try cases involving crimes against the security of the state. They began to function in 1984 as a replacement to the military courts that had been in operation under martial law. In April 1991, when the Law to Fight Terrorism (law 3713) entered into force, cases involving crimes against the security of the state began to be punished under it. The state security courts’ panel of three judges included a military judge. In June 1999, in acquiescence to criticism by the European Union and the European Court of Human Rights, the Turkish government removed the military judge from the panel. In the context of a package of reforms to the constitution passed in June 2004, the state security courts were formally abolished, and their functions were transferred to specialized heavy penal courts.
- 3.
Harmonization laws is a term used to refer to laws adopted by countries aiming to join the EU, a process required in order to achieve uniformity in the laws of EU member states.
- 4.
The Ergenekon trial, which started in 2008, consists of a series of high-profile trials in which hundreds of military officers, journalists and opposition lawmakers were accused of plotting against the AKP government. The trials resulted in lengthy prison sentences for the majority of the accused, including the former chief of the general staff. In the Balyoz (“sledgehammer”) trial, begun in 2010, the courts sentenced 322 serving and retired military army officers to prison terms ranging from 6 to 20 years for conspiring to overthrow the AKP government; 34 were acquitted. In the military spy ring trial, begun in 2011, the courts accused 56 military officials of leaking documents thereby risking the security of the state. These three trials were widely viewed as tainted by dubious evidence and were seen as part of an act of revenge carried out by Turkey’s Islamists against their former oppressors in the military, bureaucracy, and media. The trials also raised concerns about freedom of speech and the media, the independence of the judiciary, and the government’s use of its parliamentary majority to pass laws without engaging in public debate. After 2014, the Supreme Court of Appeals and the Constitutional Court have issued rulings calling for retrials of all three. Following the July 15, 2016 coup attempt, the three retrials were merged with a trial accusing alleged coup plotters, on the grounds that the three previous trials had prepared the setting for the coup.
- 5.
Ahmet Şık and Nedim Şener were arrested for their alleged links to a purportedly clandestine, secular Ergenekon organization in the framework of the OdaTV trial in which mostly journalists and writers were accused of acting as the alleged organization’s media wing. OdaTV was a Turkish news website whose offices were raided in 2011 by the police. Şık and Şener, neither of whom worked for OdaTV, were detained a month later on the basis of digital documents allegedly found during the OdaTV raid. It is commonly thought that Şener and Şık’s arrests were linked to their investigative work on the Gülen movement. While Şener (2010) suggested that the movement holds undue influence in the Ergenekon investigation, Şık’s book, The Imam’s Army (2012), argued for an affiliation between the Gülen movement and the Turkish police force. The draft of Şık’s then unpublished book was seized and banned upon his detention. Here we should note that after a year in jail, both Şık and Şener were released in 2012, remaining to this day under indictment in the OdaTV retrial. Şık, who continued to fiercely criticize the wrongdoings of both the Gülen movement and the AKP government after his release, was again arrested after he criticized the AKP government in his tweets in December 2016, this time for allegedly disseminating propaganda on behalf of FETÖ and the PKK (Coşkun 2016).
- 6.
The Gezi protests were arguably the largest wave of protests in recent Turkish history wherein hundreds of thousands took to the streets to contest the proposed demolition of Gezi Park located at the heart of Istanbul’s Taksim Square. A small sit-in against the construction of a shopping mall at the park area escalated by the end of May 2013 into a large-scale demonstration. The protests were interpreted as an expression of the tension between conservatives and a wide variety of groups in Turkey in the battle over public space, resistance to authoritarian tendencies of the AKP government, and minority group struggles.
- 7.
Bab-i Ali is a district in Istanbul where the Ottoman government and virtually all of the Turkish newspapers and publishers used to be located at. Until the 1990s, Bab-i Ali was used as a synonym for Turkish press.
- 8.
Enemy criminal law, known in German as Feindstrafrecht, is a theory set out by Gunther Jakobs (1985 and 2006) in which there is a distinction between the criminal law of the citizen and the criminal law of the enemy. In the criminal law of the enemy, people identified as enemies do not deserve the protections of the criminal law of the citizen. Certain laws may be suspended based on the idea that society or the state must be protected from the danger of the enemy. Overall, criminal law of the enemy tends to punish prospectively in order to prevent future harms. It imposes disproportionate sanctions in the name of security and departs from conventional procedural protections.
- 9.
By the time Fikret Ilkiz gave this interview in 2014, freedom of expression, freedom of the press and politics were already in a poor state in Turkey. According to the World Press Freedom Index, the country had dropped from a mediocre 99th position in 2007 to 154th in 2013. One after the other, established, mainstream media outlets were confiscated and over 30% of the newspaper circulation was transferred to groups closely affiliated with the ruling party (Çarkoğlu et al. 2013). Thousands of journalists were dismissed on political grounds. Broadcast and internet bans had turned into business as usual. The number of libel suits opened against citizens for their critical tweets skyrocketed, and an increasing number of journalists were charged with terror-related crimes. Since the interview, the situation has gone from bad to worse. Phone calls were leaked as evidence of corruption by the party and the Erdogan family. Turkey became further embroiled in the war in Syria. Violence against the Kurds in the southeast of Turkey escalated. Most recently, in July 2016, a coup d’état was attempted and failed, leading to the declaration of a state of emergency and a massive purge of civil servants. As a consequence of these developments, journalists who had exposed Turkey’s involvement in the Syrian civil war and the corruption of the AKP, academics who had signed a peace petition against violence against Kurds, and many other critical parties including Kurdish MPs, civil society activists, artists, and random citizens, were arrested on terror charges, fired, or left with no other choice but to live in exile.
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İlkiz, F., interviewed by Defne Över (2019). Freedom of Expression and the Press in Turkey. In: Özyürek, E., Özpınar, G., Altındiş, E. (eds) Authoritarianism and Resistance in Turkey. Springer, Cham. https://doi.org/10.1007/978-3-319-76705-5_21
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