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[OPINION] Out of sight, not out of reach

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Ali Yıldız*

“Out of Sight, Not Out of Reach” is the title of a report released by Freedom House, a US-based NGO, in February 2021 that seeks to understand the scale and scope of transnational repression in which governments employ tactics to silence dissidents living abroad.

The report documents 608 acts of transnational repression by 31 countries including Turkey that targeted their dissidents living in 79 countries. The report says Turkey alone has pursued its perceived enemies in at least 31 countries. Tactics used by the Turkish government are extra-judicial rendition, formal extradition requests, mobility controls by abusing Interpol mechanisms including the notices system and Stolen and Lost Travel Document Database, family intimidation and digital threats.

Perceived members of the Gülen movement, a faith-based group accused by the Turkish government of masterminding a failed coup in 2016 and labelled as a terrorist organization although the movement strongly denies any involvement in the coup attempt or terrorism, comprise a large number of individuals who were targeted through these tools. Although the Turkish government has been successful in forcibly bringing to Turkey 121 individuals from 28 different countries through extra-judicial renditions, its efforts to do the same through formal extradition procedures have repeatedly failed. According to the latest figures published by the state-run Anadolu news agency, the Turkish government has so far sent 1,022 official extradition requests for perceived Gülenists to 109 countries. Of those, 202 were sent to the United States and 361 to European Union countries.

In the vast majority of the cases, the addressee governments have not referred Turkey’s requests to their respective judicial authorities due to their failure to pass preliminary reviews either on probable cause or for being prima facie political. Yet in the cases in which a referral was made, the courts of the respective countries have without exception dismissed Turkey’s extradition requests. In the most recent example, the Supreme Court of Brazil unanimously dismissed an extradition request for Yakup Sağar, a Turkish businessman living in Brazil since 2016. During the process, the attorney general of Brazil also asked the Supreme Court to dismiss the request because it lacked “precise information about the time, place and circumstances of the alleged occurrence.”

During the hearing, which was broadcast on the court’s YouTube channel, the judge rapporteur explained that Turkey had detained more than 2,700 judges and prosecutors and said, “Clearly, ostensibly and shamefully, the [Turkish] judiciary has come under attack,” and that therefore the defendant could not enjoy a fair trial in Turkey. The reason for dismissal is based not only on the lack of procedural guarantees but also on merit. The judge rapporteur said the Turkish authorities failed to present any incriminating act of Sağar but limited themselves to considering him a terrorist solely for being a member of the Gülen movement, which, the judge rapporteur stressed, is not considered a terrorist group by the UN, the US, the EU or Brazil.

Indeed, the US Department of State explicitly stated, in its “Country Reports on Terrorism 2019: Turkey,” that “FETÖ,” a derogatory term coined by the Turkish government to refer to the Gülen movement as a terrorist organization, “is not a designated terrorist organization in the United States.” Similarly, the EU’s then-counterterrorism coordinator Gilles de Kerchove said in 2017 “ … we don’t see it [the Gülen movement] as a terrorist organization, and I don’t believe the EU is likely to change its position soon.” The court finally concluded the accusations of membership in a terrorist organization and financing terrorism against Sağar were politically motivated.

In an interview with Turkish Minute, Brazilian lawyer Beto Vasconelos, who represented Sağar, said, “At the trial, the Supreme Court judges emphatically affirmed the deterioration of the independence and impartiality of the Turkish judiciary, highlighting the dismissal and mass arrest of judges and prosecutors.” He also said the unanimous understanding of the Supreme Court was that there was a real risk to the defendant that he would be tried by the special courts that hearcases involving political accusations.

It was not the first time that the Supreme Court of Brazil had dismissed an extradition request for a member of the Gülen movement. In 2019 an extradition request for Ali Sipahi, a member of the Gülen movement, was also dismissed for its political nature and lack of assurance that the accused would be ensured an impartial trial by an independent judge in Turkey.

Of course, it is not only Brazilian courts that are rejecting such requests. In 2020 a Spanish court dismissed an extradition request for a Gülenist who was accused of membership in a terrorist organization for participating in religious gatherings where he read the Holy Quran and other religious books. In the trial the Spanish prosecutor and the court affirmed that the European Union did not accept the Gülen movement, or Hizmet, as a criminal or terrorist group. The court also said, “The facts whose commission is attributed to the defendant by the state requesting extradition lack any criminal relevance or entity under our criminal legislation; they cannot be subsumed in any type of crime established in our legal system.” Speaking to Turkish Minute, Spanish lawyer and professor of human rights Gonzalo Boye, who represented the accused, said: “The court rebuffed the extradition request for several reasons, including the failure to satisfy the condition of dual criminality and the fact that the EU and Spain do not accept the existence of a terrorist organization called FETÖ/PDY.”

British courts have also consistently dismissed similar requests from the Turkish government. A total of five requests for the extradition of Gülenist people have been dismissed by the UK Magistrate Courts, and these decisions were upheld by the High Court. But the most recent was also the most striking because the UK’s Crown Prosecution Service changed its approach and asked the court to drop the proceeding. The CPS said the described conduct of the accused did not give rise to any substantive offenses under English law; therefore, the extradition proceeding should be discharged.

The Swedish Supreme Court also dismissed two similar extradition requests including one for exiled journalist Levent Kenez. The court found that the allegations against Kenez did not contain a criminal element under Swedish law.

In 2018 and 2019, the Bucharest Appeal Court dismissed  two similar requests from Turkey for extradition including one for journalist Kamil Demirkaya. The court said in both decisions that “there are serious reasons to believe that extradition is being requested in order to prosecute or punish a person for reasons of political or ideological opinion or for belonging to a certain social group.”

In 2019 the Bosnian courts dismissed Turkey’s extradition request for journalist Özer Özsaray, 47, formerly the publisher of Sungurlu Gündem, a local newspaper in the Sungurlu district of Turkey’s Çorum province. The courts said among other things that Bosnia does not accept the existence of a terrorist group called FETÖ.

In a series of judgments (Isikirik v. Turkey, Imret v. Turkey, Parmak and Bakir v. Turkey) since 2017, the European Court of Human Rights (ECtHR) has also found that Turkey has abused its anti-terrorism provisions. The court said the anti-terror provisions of the Turkish Penal Code and the way they are applied by the Turkish judiciary have fundamentally violated several provisions of the European Convention on Human Rights. Finally, in Selahattin Demirtas v. Turkey (No. 2), which concerns an application filed by jailed Kurdish leader Selahattin Demirtaş at the rights court, the Grand Chamber of the ECtHR found that Turkey’s main anti-terrorism provision that criminalizes membership in a terrorist organization was not foreseeable and that it, therefore, breached the convention.

These rulings show that the Turkish government’s understanding of terrorism has not been accepted by other countries that are democratic and are governed by the rule by law. On the contrary, the world clearly sees the eradication of the rule of law in Turkey and the elimination of the independence of the judiciary as well as the abuse of anti-terrorism laws to suppress any kind of critical voice.

* Ali Yıldız is a Brussels-based lawyer and founder of The Arrested Lawyers Initiative.

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