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Turkey’s top court annuls controversial law punishing ‘crimes committed on behalf of an organization’

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Turkey’s Constitutional Court has annulled Article 220 § 6 of the Turkish Penal Code, a controversial law that punished individuals for committing crimes on behalf of an organization without being a member of that organization, citing a lack of clarity and predictability.

The court emphasized that the provisions do not prevent arbitrary application by the authorities. The judgment was published in the Official Gazette in the early hours of Friday and will enter into force in four months’ time.

Article 220 of the Turkish Penal Code, which deals with the crime of “forming an organization to commit crimes,” provides for a prison sentence of four to eight years for people who establish, lead or are members of a criminal organization.

However, the sixth paragraph punishes non-members who “commit offenses on behalf of an organization.” It states that persons who commit offenses in the name of an organization without being a member are also punished for membership, with the possibility of reducing the sentence for membership by half.

“Any person who commits an offense on behalf of an organization, although he is not a member of that organization, shall also be sentenced for the offense of membership in that organization. The sentence to be imposed for membership in that organization may be decreased by half. This provision shall only be applied in respect of armed organizations,” Article 220 § 6 of the Turkish Penal Code says.

The top court decision came after the İstanbul 22nd High Criminal Court and the Patnos High Criminal Court in the eastern Turkish province of Ağrı dropped the cases they were examining on charges stemming from the controversial provision and referred the matter to the Constitutional Court.

The court’s assessment led to a unanimous decision to annul the provision. The decision will come into force four months after its publication in the Official Gazette, giving the Turkish parliament a timeframe to enact a law that meets the criteria set by the court. Otherwise, the provision will not be enforceable in Turkey, which could have an impact on existing cases.

The Constitutional Court also emphasized that the vagueness of the law leads to a broad interpretation that affects fundamental rights such as the freedoms of expression, assembly and association, as well as freedom of religion and conscience. It concluded that the provision does not meet the required standards of certainty and predictability and is therefore incompatible with constitutional principles.

Previously, the European Court of Human Rights (ECtHR) had found in its Işıkırık judgment in 2017 that Article 220/6 of the Turkish Penal Code is unpredictable and does not meet legal standards. The ECtHR had emphasized that the vague wording and broad application of the law did not provide adequate protection against arbitrary interference by the authorities.

“Turkey’s criminal law, especially anti-terror provisions, are vague and susceptible to abuse by the country’s judiciary which is by and large controlled by the executive branch,” Brussels-based lawyer Ali Yıldız told Turkish Minute.

“The ECtHR first addressed this issue in 2017 and 2018 in the cases of Işıkırık v Turkey and İmret v Turkey. The court ruled that Article 220 § 6-7 of the Turkish Penal Code does not provide legal protection against arbitrary interference with the right to freedom of assembly and association under Article 11,” Yıldız said.

In its decision of June 10, 2021, Turkey’s Constitutional Court also pointed out structural problems with Article 220 § 6, which led to a so-called “pilot judgment” that resulted in similar applications being postponed for a year and the decision being submitted to the parliament for resolution. However, no amendment was made to the law to resolve the problem.

Turkey’s criminal laws are often criticized by rights groups and international bodies for their vague and broad provisions, resulting in rights violations.

The provision annulled by the top court was previously used to silence critics and politicians who speak out for the Kurds, as it was used as a justification for people who are not involved in the organizational structure of the outlawed Kurdistan Workers’ Party (PKK) but who demand rights for Kurds or participate in protests and demonstrations to be convicted of “committing crimes on behalf of an organization without being a member of that organization.”

After Turkey’s authoritarian turn starting in 2013, with protests over the demolition of Gezi Park that turned into countrywide anti-government rallies, and the graft probe that implicated then-prime minister and current president Recep Tayyip Erdoğan’s inner circle, the judiciary, under the influence of Erdoğan administration, started to punish critics who spoke out against the government’s authoritarian tendencies and its crackdown on dissent.

Just recently, a Turkish prosecutor demanded three years in prison for former journalist Erdem Gül in a trial concerning a report on National Intelligence Organization (MİT) trucks allegedly transporting weapons to rebels in Syria in 2014.

Gül was the Ankara representative of the Cumhuriyet daily when the newspaper published a report on the trucks in May 2015 that caused a political firestorm in Turkey and led to the filing of criminal charges against the journalists and others involved in the publication of the story. He faced charges of “commiting an offense on behalf of an organization.”

Gül is currently a district mayor in İstanbul from the main opposition Republican People’s Party (CHP).

He is being retried since the Supreme Court of Appeals in April reversed a lower court decision that did not impose prison sentences on Gül and CHP lawmaker Enis Berberoğlu, who was also a defendant in the trial.

When the MİT trucks story first broke, it led to a debate about the role of the Turkish spy agency in arming rebel factions in Syria and prompted an investigation into Cumhuriyet daily journalists Can Dündar, who was the paper’s editor-in-chief at the time, and Gül, who published the report.

They were first jailed while facing trial on spy charges for publishing footage purporting to show MİT transporting weapons to Syria. Later, the two journalists were released pending trial.

Dündar left Turkey in 2016 and has been living in exile in Germany since then, while Gül took up politics.

Cases of veteran journalists Ahmet Altan, Mehmet Altan and Nazlı Ilıcak, charged under the same provision, also underscore the widespread impact of the annulled law on individuals in the media. The Altan brothers and Ilıcak were arrested after a failed coup in 2016, in the aftermath of which Erdoğan embarked on a widespread crackdown on civil society and dissent, arresting tens of thousands on the pretext of an anti-coup fight.

The provision was even used against individuals associated with notorious Turkish mob boss Sedat Peker, who in 2021 and 2022 made headlines with a series of exposés about corruption in the Justice and Development Party (AKP) government, and his organization subsequently became a target of Ankara.

In the trial involving Peker’s alleged criminal organization, 22 individuals were charged with “committing crimes on behalf of the organization without being members of that organization.”

An İstanbul court on Wednesday began to hear the trial of Ogün Samast, the convicted murderer of Turkish-Armenian journalist Hrant Dink.

The 52-year-old Dink, editor-in-chief of the Turkish-Armenian bilingual Agos weekly, was shot dead with two bullets to the head outside the newspaper’s headquarters in central İstanbul on Jan. 19, 2007 by Samast, then a 17-year-old jobless high school dropout.

Samast was arrested the following day.

After serving 16 years, 10 months, Samast was released from prison in western Bolu province on Nov. 15, which led to outrage among opposition politicians, journalists, human rights activists and social media users.

Days after Samast’s release, the İstanbul 2nd Juvenile Court accepted an indictment seeking a prison sentence ranging from seven years, six months to 12 years for Samast on the grounds that he “committed crimes on behalf of an armed terrorist organization without being a member of that organization.”

The organization in question is the Gülen movement.

The Turkish government accuses the Gülen movement, inspired by the views of Islamic cleric Fethullah Gülen, of masterminding the failed coup on July 15, 2016 and labels it as a terrorist organization. Gülen and his movement strongly deny any involvement in the failed putsch and any terrorist activity.

According to the indictment, although concrete evidence of Samast being a member of the Gülen movement could not be obtained, certain pieces of evidence indicate a connection with the organization’s leaders and members and that Samast acted in line with the organization’s interests and objectives during and after the murder.

If the top court decision annulling the controversial provision comes into force, it will also affect Samast’s trial.

Lawyer Akın Atalay, reacting to the top court’s decision, pointed out the impact on cases such as that of Labor Party of Turkey (TİP) lawmaker Ahmet Şık, who was arrested in December 2016 as part of an investigation targeting journalists and executives from the Cumhuriyet daily. He criticized the timing of the decision, saying that the court’s annulment came after lower courts rendered many unjust rulings based on the law. Atalay also pointed out that the ruling could have an impact on other high-profile cases, including that of Samast.

In 2018 a Turkish court sentenced 13 Cumhuriyet journalists and executives to prison on terrorism charges in a case that sparked widespread outrage over press freedom.

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