Human Rights Watch
(Istanbul) – The Turkish government has jailed 13 members of the pro-Kurdish democratic opposition in parliament on terrorism charges and taken direct control of 82 municipalities in the Kurdish southeast region, suspending and incarcerating elected mayors, Human Rights Watch said today. The crackdown on democratically elected officials not only violates their rights to political association and participation, and freedom of expression, but also interferes with the rights of constituents who voted for them and whom they serve in office.
The move against the national pro-Kurdish party, Peoples’ Democratic Party (HDP), and its regional sister party, Democratic Regions Party (DBP), comes in the lead up to an April 16, 2017 constitutional referendum on an amendment that would transform Turkey from its traditional parliamentary political system to a presidential one, leading to a concentration of power in the office of the president. The proposal has been widely criticized for lacking adequate checks and balances to protect human rights and rule of law against misuse of power by the office of the president. Both parties oppose such an expansion of presidential powers.
“It’s deeply damaging to Turkey’s democracy that the government is locking up the leaders and MPs of an opposition party that received five million votes in the last election,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch, “The fact that the curbs come during a vital national debate about the country’s future is doubly disturbing.”
Selahattin Demirtaş and Figen Yüksekdağ, the co-leaders of HDP, and 11 of its other parliament members are in jail facing terrorism charges. Yüksekdağ was stripped of her seat in February and subsequently of her party membership after an earlier terrorism propaganda conviction was upheld. In Turkey’s southeast, the government has taken control of 82 municipalities won by the DBP and suspended their democratically elected co-mayors under suspicion of terrorism offenses, with 90 of them jailed pending trial.
The jailing of the parliament members is possible because of a temporary constitutional change, approved by parliament in May 2016, that lifted the parliamentary immunity of 154 members under investigation at that time for criminal offenses – 55 are HDP members. The change does not apply to members investigated after the May vote was taken, who retain their immunity as long as they stay in office.
The one-time removal of immunity has been criticized by the Council of Europe’s Venice Commission, which advises on constitutional matters, the Council of Europe Commissioner for Human Rights, and the Parliamentary Assembly of the Council of Europe.
In the period before the immunity vote, there was a sharp increase in applications by prosecutors to investigate HDP members of parliament, with almost 152 applications in the month before the vote alone.
Police detained Demirtaş and Yüksekdağ and the deputy chair of the party’s parliamentary group, İdris Baluken, on November 4, 2016, as well as six other parliament members – Nursel Aydoğan, Gülser Yıldırım, Leyla Birlik, Selma Irmak, Ferhat Encü, and Abdullah Zeydan. They were brought before courts and sent to pretrial detention the same day.
Nihat Akdoğan, another member, was detained and jailed three days later. In the following months four more parliament members were jailed – Ayhan Bilgen, the party spokesman, Meral Danış Beştaş, a Parliamentary constitution commission member, Besime Konca, and Çağlar Demirel. All have since been indicted on terrorism charges. Other HDP parliament members were detained and released on probation, with Leyla Birlik released from prison on January 4 at her first trial hearing.
The jailing of the party leaders and members of parliament constitutes an alarming interference with the party’s parliamentary work and its right to organize its campaign in advance of the referendum, Human Rights Watch said. It is reminiscent of the situation in 1994 when the immunity of Democracy Party (DEP) members of parliament was lifted and Leyla Zana, Orhan Doğan, Hatip Dicle, and Selim Sadak were jailed days later on terrorism charges, spending a decade in jail. They were convicted of membership of an armed group in a trial the European Court of Human Rights ruled was unfair and violated their rights.
The government has used powers under the state of emergency adopted following the July 2016 attempted coup to take direct control of municipalities and remove elected mayors. A September 1 decree (no. 674) amended the Law on Municipalities to permit the takeover of municipalities suspected of supporting terrorism. Mayors in 82 of the 103 municipalities controlled by the DBP have been suspended from office on alleged suspicion of terrorist offenses and the municipalities taken over by government-appointed provincial authorities. Mayors from other parties were removed in four other municipalities but in each case the authorities allowed other elected local representatives to take over their duties.
Thousands of other members of both pro-Kurdish parties have been arrested. The HDP informed Human Rights Watch that since the July 2016 attempted coup in Turkey, 5,471 of its party officials, including heads of provincial and district branches, had been detained, with 1,482 sent to pretrial detention. The BDP sister party told Human Rights Watch that 3,547 of its party officials had been placed in pretrial detention since July 2015. The arrests have undermined the ability of parties to conduct a campaign over the upcoming referendum, officials from both parties say.
The actions of the authorities against democratically elected officials are counter to Turkey’s responsibilities under international and regional human rights law, including the right to political participation, the right to free elections, the right to freedom of expression, and the rights to freedom of association and assembly under the International Covenant on Civil and Political Rights and the European Convention on Human Rights.
Lifting the Immunity of Parliament Members
The May 20, 2016, parliamentary vote on the constitutional amendment lifted the immunity of 154 members of parliament who had ongoing criminal investigation files against them. The amendment temporarily suspended article 83/2 of Turkey’s constitution, lifting its prohibition on the criminal detention, interrogation, arrest, or prosecution of a member of parliament unless the parliament decides otherwise through an individualized process.
While the measure covered members from all parties, who are otherwise immune from criminal investigation while they hold elected office, it disproportionately affected the HDP. This was made clear in the general explanation accompanying the motion to suspend the article of the constitution:
While Turkey is undertaking its greatest and most comprehensive fight against terrorism, the statements of certain deputies constituting emotional and moral support to terrorism, the de facto support and assistance of certain deputies to terrorists and the calls for violence by certain deputies cause public outrage. The Turkish public believes that certain deputies, who above all support terrorism and terrorists and call for violence, are exploiting parliamentary immunity, and requests that the Assembly allow the prosecution of those who take such actions. The Assembly cannot be considered to remain silent upon such a request. Many members of parliament and political party officials request that the immunity files be dealt with and that immunity be lifted.
The fact that other members of parliament retain their immunity in relation to any future criminal investigation underscores the differential treatment of the affected members.
In a July 28, 2015 speech and subsequent speeches made over the months before the government introduced the bill, President Recep Tayyip Erdoğan had suggested lifting the parliamentary immunity of the HDP MPs, saying on several occasions that he saw prosecuting them as an alternative to closing down their party. The European Court of Human Rights had repeatedly found that closing down political parties – a common practice in Turkey – violated the right to association under article 11 of the European Convention.
Lawyers for the HDP told Human Rights Watch that in the months preceding the May 2016 vote, there was a dramatic rise in the number of applications from prosecutors for criminal investigations against HDP members of parliament. The potential offenses included spreading terrorist propaganda, membership in an armed organization, insulting the state, insulting the president, and fomenting public enmity.
While there had been 182 such applications against MPs from pro-Kurdish parties over the eight-year period from 2007 to December 24, 2015, 328 were filed in the five-month period between December 2015 and May 2016, 152 of them in the month after the government submitted the amendment and before the final vote on May 20. A total of 510 applications were filed against HDP members, seeking prosecution for 645 offenses, compared with 294 applications for the three other parties in parliament combined.
The amendment lifted the immunity of 55 of the 59 HDP members, 59 of 134 members from the main opposition Republican People’s Party (CHP), 29 of 316 from the ruling Justice and Development Party (AKP), 10 of 40 from the opposition Nationalist Action Party (MHP), and one independent.
The Constitutional Court rejected an appeal against the constitutional amendment by the HDP and some CHP members. The HDP and individual MPs from the party have since taken cases to the European Court of Human Rights.
The lifting of parliament members’ immunity was criticized by the Council of Europe’s constitutional advisory body, the Venice Commission, by the Commissioner for Human Rights of the Council of Europe, and by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, which stated in a June 2016 resolution on “the functioning of democratic institutions in Turkey”:
Even though MPs from all political groups are concerned, the Assembly notes with concern that this decision disproportionately affects the opposition parties, in particular the People’s Democratic Party, some of whose members are facing terrorism-related charges for statements they have made.
In the Venice Commission’s comprehensive Opinion on the suspension of the second paragraph of article 83 of the constitution (parliamentary inviolability), adopted by the Commission at its 108th Plenary Session (14-15 October 2016), the body concluded:
…the inviolability of these Members of Parliament should be restored. The Venice Commission is of the opinion that, in the current situation in Turkey, parliamentary inviolability is an essential guarantee for the functioning of parliament. The Turkish Grand National Assembly, acting as the constituent power, confirmed this by maintaining inviolability for future cases. The current situation in the Turkish Judiciary makes this the worst possible moment to abolish inviolability.
The Venice Commission went on to criticize the way in which the immunity was lifted against particular members of parliament as a violation of the principle of equality:
80. The constitutional amendment [motion] of 12 April 2016 was an ad hoc, “one shot” ad homines measure directed against 139 individual deputies for cases that were already pending before the Assembly. Acting as the constituent power, the Grand National Assembly maintained the regime of immunity as established in Articles 83 and 85 of the Constitution for the future but derogated from this regime for specific cases concerning identifiable individuals while using general language. This is a misuse of the constitutional amendment procedure.
81. The argument that dealing one by one with the cases against these deputies would have taken too long and would have unduly burdened the agenda of the Grand National Assembly is not convincing. Instead of simplifying the procedure of lifting immunity, the complex system was maintained but it was derogated for 139 deputies. The heavy workload of the Grand National Assembly does not justify singling out the cases relating to these deputies from all other cases brought before it before and after the adoption of the Amendment. This violates the principle of equality. In the opinion of the Commission, the system of parliamentary immunity in Turkey should not be weakened, but reinforced, in particular in order to ensure the freedom of speech of Members of Parliament.
Jailing Members of Parliament Pending Trial
At the time the Venice Commission issued its opinion, the full impact of lifting the immunity was not known. The arrests and detention of HDP members of parliament and party leaders began three weeks after the Commission’s report was published. No member of parliament from any other party has been jailed, although prosecutors questioned some others whose immunity was lifted.
On February 21, parliament stripped Yüksekdağ of her parliamentary seat after it was notified by the government that, on September 22, 2016, the Court of Cassation had upheld her conviction for “spreading terrorist propaganda” on the grounds that in November 2013, she attended a militant’s funeral at which some crowd members shouted slogans.
The government asked the general assembly of the parliament to revoke Yüksekdağ’s parliamentary seat based on her conviction for a terrorism offense, grounds for losing the right to be elected to a parliamentary seat under the Constitution (article 76). On March 9, the chief prosecutor of the Court of Cassation notified the HDP that the conviction dissolved Yüksekdağ’s party membership. Both steps have been heavily criticized by the HDP on two grounds. Firstly, the case for which Yüksekdağ received the conviction was reportedly not included among those cases prosecutors had submitted for the lifting of immunity. Secondly, the chief prosecutor of the Court of Cassation has no legally assigned role in communicating dissolution of party membership. For these reasons, the HDP argues that Yüksekdağ has been subjected to harsh and differential treatment.
In a February 2017 Memorandum on Freedom of Expression and Media Freedom in Turkey, Council of Europe Commissioner for Human Rights Nils Muiznieks strongly condemned the May 2016 lifting of immunity and commented on the implications of jailing HDP MPs:
In the current climate, the Commissioner considers that the lifting of the immunities of MPs and their subsequent arrest and detention not only disenfranchised millions of voters, but sent an extremely dangerous and chilling message to the entire Turkish population, and significantly reduced the scope of democratic debate, including on human rights.
Criminal Prosecution of Parliament Members
Human Rights Watch has examined the criminal indictments against 11 HDP members of parliament and decisions to detain them pending trial. The evidence cited in the indictments consists mainly of political speeches rather than any conduct that could reasonably support charges of membership of an armed organization or separatism. The indictments charge them with offenses punishable with prison sentences amounting to hundreds of years. A Human Rights Watch representative spoke to İdris Baluken during a brief period when he was free and observed a Diyarbakır trial hearing against Çağlar Demirel, at which the court extended her detention. Both are members of parliament from Diyarbakır.
Selahattin Demirtaş, the HDP co-leader and member of parliament for Istanbul, was detained on November 4, 2016, and placed in pretrial detention pending a first trial hearing on April 26. The 500-page indictment against him, issued on January 11, charges him with being a leading member of the armed Kurdistan Workers’ Party (PKK/KCK), spreading terrorist propaganda, praising crimes and criminals, inciting enmity among the population, inciting the population not to obey laws, organizing, participating in, and provoking unauthorized demonstrations, and inciting the population to commit crimes. If convicted, he could face a 142-year prison sentence.
While much of the indictment is taken up with an account of the history of the armed PKK/KCK and the alleged structure of the organization, the evidence cited against Demirtaş consists mainly of his speeches. In addition, many pages of transcripts of wiretapped calls and intercepted conversations are used as evidence to suggest Demirtaş’s association with a non-governmental platform in Diyarbakır called the Democratic Society Congress, which the prosecutor alleges is part of the PKK/KCK, though none of the information seems to point to anything approaching criminal activity.
The evidence also includes a public statement by the HDP on October 6, 2014, calling for protests against the Turkish government’s approach to the Islamic State (also known as ISIS) assault on the northern Syrian town of Kobane. The prosecutor describes this statement as incitement to armed insurrection, although the statement did not call for violent protest. The indictment lists in detail the consequences of these protests, which left up to 50 dead in towns throughout the southeast and widespread destruction of property. While the authorities have a duty to investigate circumstances in which these deaths and other criminal activities occurred, with a view to identifying those responsible and bringing them to justice, there is no evidence that the violence was the result of the HDP call for protest or that the party could have reasonably been expected to foresee the violent events that would unfold. Human Rights Watch furthermore notes that days after the October 6-8 incidents the HDP tabled a motion for a parliamentary inquiry into the circumstances in which the deaths occurred but that this was turned down by the ruling party and the opposition MHP.
Demirtaş has many other ongoing cases against him for political speeches outlined in separate indictments but he was not sent to pretrial detention on the basis of those charges.
In its opinion on the lifting of immunity, the Venice Commission raised particular concerns about the fact that a large number of the investigation files against parliamentarians concerned their political speeches:
… most of the files concerned by this abrogation relate to freedom of expression of Members of Parliament. Freedom of expression of Members of Parliament is an essential part of democracy. Their freedom of speech has to be a wide one and should be protected also when they speak outside Parliament. The non-violent pursuit of non-violent political goals such as regional autonomy cannot be the subject of criminal prosecution. Expression that annoys (speech directed against the President, public officials, the Nation, the Republic etc.) must be tolerated in general but especially when it is uttered by Members of Parliament. Restrictions of the freedom of expression have to be narrowly construed. Only speech that calls for violence or directly supports the perpetrators of violence can lead to criminal prosecution. The case-law of the European Court of Human Rights shows that Turkey has a problem with safeguarding freedom of expression, not least with respect to cases considered as propaganda for terrorism. This is partly due to the fact that, as explained in the Opinion CDL-AD(2016)002 on Articles 216, 299, 301 and 314 of the Penal Code of Turkey of March 2016, the scope of several provisions of the Penal Code is too wide. This endangers freedom of expression in general but notably also freedom of expression of members of the National Assembly.
Charges similar to those against Demirtaş are also levelled against other jailed HDP members of parliament including charges holding them responsible for the Kobane protests.
Human Rights Watch spoke to İdris Baluken on February 14. He had been released on bail on January 30 but was detained again on February 21. The indictment against Baluken charges him with membership of the PKK, spreading terrorist propaganda, joining unauthorized demonstrations and failing to disperse, and attempting to destroy the integrity of the state. If convicted, he faces a possible sentence of life imprisonment without parole. The evidence against him consists of five speeches, and attendance at three demonstrations the prosecutor argues were ordered by the PKK/KCK and two funerals of militants.
He described the major constraints preventing the HDP from mounting a serious political campaign ahead of the referendum:
We are in a referendum period and are a parliamentary opposition party with our party leaders in prison. The constitutional amendments that will be voted on in the April referendum are not legitimate because we have been unable to use our lawful powers and authority as part of the parliamentary opposition which is a fundamental principle in a democratic country. When you think too that over 70 mayors and thousands of our party officials and members are jailed, and that under the state of emergency there is a crackdown on the media and civil society, in such a climate any legitimacy in discussing changing the constitution is gone. How can it be acceptable in a democracy for opposition leaders to be in jail?
He described his prison conditions:
I was held in solitary confinement for almost three months. In three months on only three occasions was I allowed to meet with other prisoners, once with the co-mayor of Diyarbakır Fırat Anlı, once with the co-mayor of Dersim Mehmet Ali Bul, and once with the two of them together
Government Takeover of Municipalities; Suspension, Jailing of Elected Mayors
Under the state of emergency, the council of ministers headed by the president can govern by emergency decree as well as through the regular legislative process. Nineteen decrees issued from July 23, 2016 onward included administrative decisions (such as dismissing public officials and closing associations and media outlets and changes to many laws without a requirement for prior parliamentary scrutiny). Turkey’s constitutional court has yet to rule on the content of these decrees for their compliance with the constitution.
Decree no. 674, on September 1, 2016, amended the Law on Municipalities (articles 45, 57) to allow provincial governors, appointed by the interior minister and the president, to take direct control of municipalities suspected of supporting terrorism or whose mayors had been suspended on the same ground. In the media, the government appointee in place of the mayor – typically a district governor (kaymakam) and in the case of greater municipalities the governor (vali) – is widely referred to as a “trustee” (kayyum). The term is in fact a misnomer and legally applies only to private companies and not to public bodies such as municipalities.
On September 11, the Interior Ministry announced the takeover of 28 municipalities, 24 controlled by the DBP and accused of supporting the PKK. Four others were accused of supporting the alleged Fethullahist Terrorist Organization (FETÖ) – three controlled by the ruling AKP and one by the opposition MHP. In all the DBP municipalities, Ankara-appointed district governors serving in the provinces took over in place of mayors. In the four others, existing elected members of the municipal council replaced the mayors, preserving local democratic accountability.
Decree no. 674 signalled the beginning of a process expressly targeting the municipalities of the southeast and eastern regions where the DBP had won 103 in the 2014 local elections. By March 6, the government had ordered the suspension of mayors from 82 of these 103 municipalities, including larger towns and cities such as Diyarbakır, Mardin, and Van, and their takeover by Ankara-appointed provincial governors and district governors.
The circumstances of the removal and replacement of elected mayors varied. Some were suspended from office, detained and placed in pretrial detention on suspicion of committing offenses punishable under terrorism laws, and immediately replaced by government appointees. Others were suspended, replaced, and then later detained. A total of 90 co-mayors are in pretrial detention pending trial on terrorism charges. According to the DBP, after the government assumed control of the DBP municipalities, in every province many municipality-run community facilities, including women’s centers offering support to victims of domestic violence, crèches, and cultural centers were closed down without explanation.
The initial suspension of elected mayors is in theory a temporary measure. Mayors do not have immunity from criminal prosecution, and if they are convicted under terrorism laws, and the Court of Cassation upholds the conviction, under article 53 of the Penal Code they would automatically lose their right to hold elected office as mayors. No mayor elected in the March 2014 local elections has yet received a final sentence.
Human Rights Watch spoke to two mayors, one of whom had been suspended and the other suspended, jailed, and then released, and to the lawyers of two others suspended and jailed.
Ahmet Türk, 74, a well-known figure in political life and in the Kurdish political movement and a former parliament member, was elected co-mayor of the Mardin greater municipality in March 2014 by 52 percent of the vote. Following his removal on November 16, 2016, the Mardin governor was appointed on November 18 to run the municipality. Türk was detained on November 21 and placed in pretrial detention on November 24. He was released on February 3 and has not yet been indicted for any crime. He spoke to Human Rights Watch on February 15:
This has not been a legal process. The decision to appoint a trustee to Mardin greater municipality was an entirely political decision connected with the referendum and because of the Kurds being involved in the Middle East situation. The authorities concocted thousands of crimes against us. There is no indictment yet in my case. When they questioned us they claimed we gave money to the PKK, but the only money transfers we made were the salaries of the municipal workers.
We had anyway been inspected four times by the prime ministry inspectorate. In fact there was some kind of inspection every two months. They never found anything. But look at the allegations we now face – crimes such as abusing our position, insulting the state, aiding terrorism, funding terrorism.
After the takeover of the municipality, up to 200 public officials working there have been dismissed, 470 if you count the districts of Mardin as well.
The takeover of municipalities in our region by trustees is about suppressing their ideas, politics and their identity. We are accused of embracing the PKK, of being the PKK and other invented crimes. This is a typical policy aimed at suppressing us.
He described his prison conditions:
I was held in Silivri prison for 50 days and Elazığ prison for 23 days. Because I have a pacemaker they didn’t hold me in a cell alone as they did for others. In Elazığ prison my meetings with my lawyers were filmed and recorded and a prison guard was present. I couldn’t tell if they recorded my conversations with lawyers in Silivri prison where many other prisoners’ meetings with their lawyers were filmed – especially those of the Gülenist prisoners.
Co-mayors of the greater Diyarbakır municipality, Gültan Kışanak and Fırat Anlı, elected with 55 percent of the vote in March 2014, have both been in pretrial detention since October 30, 2016. The Interior Ministry suspended their functions a day after their arrest and on November 1 the district governor of Etimesgut, a district of Ankara, was appointed to replace them. He has not convened the municipal council even once since his appointment.
Gültan Kışanak is held in Kandıra F type prison in Kocaeli province in western Turkey. A November 11, 2016 indictment charges Kışanak with 41 counts of spreading terrorist propaganda, joining unauthorized demonstrations, and being a leading member of an armed terrorist organization. If convicted Kışanak faces a possible 230-year prison sentence. The indictment, which Human Rights Watch has seen, focuses at length on her alleged links with the Democratic Society Congress encompassing many civic groups, which the court contends is part of the PKK/KCK. The indictment also cites numerous political speeches. Because the municipality provides funeral vehicles for transporting the dead to their place of burial, Kışanak is held responsible for the fact that the coffins of armed militants transported in municipal vehicles bore PKK symbols and flags. There is no evidence in the indictment against Kışanak that could conceivably support the accusation that she is a leading member or member of an armed organization or that she has committed any act that could reasonably be described as terrorism.
Fırat Anlı, the Diyarbakir co-mayor, is in prison in Elazığ. The indictment, which Human Rights Watch has seen, includes charges similar to those against Kışanak, including the charge of spreading terrorist propaganda for speeches and providing funeral vehicles carrying the bodies of armed militants. He is also charged with the killing of a soldier during an armed clash on the basis of evidence that suggests he visited the village where it happened. Anlı’s lawyers, however, told Human Rights Watch that there was no conceivable connection between his visit and the armed clash in November 2015, since his visit to the location was in 2014, a year before the clash. He faces a possible 121-year prison sentence if convicted.
Zuhal Tekiner was co-mayor of the municipality of Silvan in Diyarbakır province until she was replaced by the district governor on September 11, 2016. Silvan is one of the 28 municipalities to be taken over under decree no. 674. Tekiner had previously been a member of the council and deputy mayor and was selected as co-mayor after the elected mayor, Yüksel Bodakçı, was jailed in August 2015 following a news conference, at which a declaration of “self governance” (öz yönetim), seeking to assert greater autonomy in how local government operates, was made. Bodakçı was released in March 2016, but Tekiner continued to act as co-mayor. She told Human Rights Watch about the day the authorities took over the Silvan municipality:
Police entered the municipality on September 11 at 7 a.m., searched the building, took away our computers and documents. We were not in the building at the time. I went straight to our party provincial headquarters in Diyarbakır city and we held a press conference rejecting what was happening. Then I returned to Silvan and we set up a crisis desk in a café.
There are dozens of investigations against me for a range of alleged offenses such as holding us responsible for putting up gravestones for militants with symbols on them connected with the PKK though they were there for many years before we were even in office and the municipality in any case is not responsible for the matter of gravestones. I am also accused of renting out shops owned by the municipality at low rents, of making propaganda at funerals of militants, for an interview with a journalist, for things I shared on social media. I have 10 ongoing trials, was acquitted in three other cases. Inspectors conducted inspections of the municipality dozens of times and found nothing concrete in those inspections.
After the trustee took over, various municipal services such as the women’s center and the crèche were closed down. Seventy-three people were fired from the municipality and others were taken on in their place, mostly people with connections to the AKP or Hüda Par [an Islamist political party]. People in Silvan pity us for what happened but it’s them that suffered. Just think, you choose your local municipal representatives and then your vote doesn’t count for anything. I am a voter too and I find it impossible to accept. Fear is everywhere and people have come to fear their own neighbours in this oppressive political climate.