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[OPINION] Brazil’s Supreme Court debunks the Turkish judiciary’s political postulate

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Ali Yıldız*

As Turkey declines more precipitously in terms of rule of law, its interpretation of facts and accusations against dissidents have become further estranged from the view of democratic countries. This is most visible in extradition cases stemming from Turkey’s requests.

According to the latest figures published by the state-run Anadolu news agency, the Turkish government has sent 1,022 official extradition requests for perceived Gülenists to 109 countries since 2016. Of those, 202 were sent to the United States and 361 to European Union countries. In the vast majority of 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.

Gülenists refer to people inspired by the views of Turkish cleric Fethullah Gülen. The Gülen movement has been targeted by the Turkish government for nearly a decade, labeled as a terrorist organization and accused of masterminding a failed coup in Turkey on July 15, 2016. The movement strongly denies any involvement in the coup attempt or terrorist activity.

In the most recent example, on April 5, 2022 the Supreme Court of Brazil unanimously dismissed an extradition request for Yakup Sağar, a Turkish businessman living in Brazil since 2016, as it did in the extradition case of Ali Sipahi, another Turkish businessman who is perceived as a member of the Gülen movement.

Although the hearing broadcast on the court’s YouTube channel was striking, the court’s reasoned decision, which was just recently published on the court’s website, has turned out to be an indictment of condemnation of the Turkish judiciary.

During the hearing 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 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.

In its reasoned decision the Supreme Court of Brazil debunked the Turkish judiciary’s entire postulate. The court said the first obstacle to extradition was that the Turkish authorities had not presented a specific description of the facts but had suggested generic accusations only. The judges said the requesting state was under a duty to identify the imputed crimes with clarity and precision and also to define their elements. The court found that the allegations made by the Turkish government were of excessive generality and non-specificity.

The judges also concluded that the accusations made by the requesting state had a clear political motivation, the second obstacle to extradition. The Supreme Court found the characterization of the Gülen movement as a terrorist organization had arisen out of its opposition to Turkish President Recep Tayyip Erdoğan. The Supreme Court added, “According to what has been reported, except by the requesting state, there is no characterization of the accused movement as a terrorist organization.”

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.”

Invariably, in a 2020 extradition proceeding against a member of the movement, 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 subject of the extradition request, 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.”

According to the Supreme Court of Brazil, the third obstacle to extradition was that the subject was at risk of being tried before an exceptional court or tribunal. After mentioning the mass dismissal and arrest of judges and prosecutors in Turkey, the judges said there were at least justified concerns that the subject would be submitted to an exceptional court and would not enjoy a fair and impartial trial by an independent judge in accordance with the due process of law.

During deliberations a senior judge said: “Unfortunately, Turkey, a beautiful and lovely country, fell into this web of authoritarian, extremist populism, with the compromising of its institutions, including, as pointed out by the eminent rapporteur, the independence of the judiciary, unfortunately.” He added that there were even doubts that the principle of natural judge would be observed in Turkey.

Under Turkey’s overly broad anti-terror provision, the executive-controlled judiciary prosecutes hundreds of thousands of individuals for membership in an armed terrorist organization for who they are, rather than for what they might have done. Details of the everyday lives of ordinary law-abiding citizens are enough for Turkish prosecutors to issue indictments and for the Turkish courts to eventually convict them of terrorism. A tweet one may have posted, a book or a newspaper one might have subscribed to, or a phone call he or she might have received from an unknown number can be considered evidence of terrorist activity.

Although the victims do not have an iota of fair trial rights in Turkey, there is no instance of a court in a foreign country upholding the Turkish judiciary’s argument, which simply parrots President Erdoğan’s political discourse.

 

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

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