Given the daily arrests in Turkey, and the increasing purges against critics and opponents for alleged anti-terrorism offences, it is worth considering the judicial proceedings of journalist and writer Ahmet Şık as a paradigm example of the political crackdown ongoing in Turkey.

In April 2007, Ahmet Şık’s colleagues at Nokta magazine published “The Coup Diaries”, which contained alleged extracts of a diary exposing a plot by military leaders to overthrow the government. Ahmet Şık denied involvement in the publication. In 2010, Ahmet Şık wrote a book entitled “The Imam’s Army”, which was reporting on and warning of a Gülenist and Islamist infiltration in the Turkish state apparatus. The book was prevented from being published.

Due to these two publications, Ahmet Şık was charged with promoting infiltration into the state apparatus, and aiding and abetting an armed organization. He was charged alongside other journalists, such as Nedim Şener. In March 2011, the journalists were sent into pre-trial detention that lasted for over a year. The human rights violations caused by these criminal proceedings were acknowledged by a precedent before the European Court of Human Rights (ECtHR) in 2014.

On December 29, 2016, Ahmet Şık was arrested again as a correspondent of the Cumhuriyet newspaper. He was charged with terrorism-related offences and he has been held in pre-trial detention for almost a year. In May 2017, a new application to the ECtHR was filed by Ahmet Şık.

Overview of the 2014 Strasbourg judgments

The ECtHR judgments of Ahmet Şık v. Turkey and Nedim Şener v. Turkey from 2014 are particularly interesting for contextualising other cases of Turkish journalists accused of terror-related offenses.

Nedim Şener is a journalist whose work has focused mainly on the misappropriation of funds by politicians and businessmen, the links of certain members of the security forces with Mafia-type and terrorist organizations, offences committed by the intelligence services, and the influence of religious organizations on police. Ahmet Şık is a journalist working on stories concerning freedom of expression, unsolved killings, police violence, Kurdish issues, and problems with the operation of the judicial system.

Şık and Şener were arrested in 2011 in the wake of the Ergenekon trials: Ergenekon was an alleged terrorist organization accused of plotting to overthrow the Turkish ruling “Justice and Development Party” (AKP). At this time, several opposition journalists were charged with membership in Ergenekon. Şık and Şener were accused under Article 220(7), in conjunction with Article 314 of the Turkish Criminal Code (TCK), for aiding and abetting an armed organization. These charges followed their alleged involvement in the production of two books which accused the government of promoting the infiltration of Islamists into state structures. One of these books, entitled “The Imam’s Army”, which had not been published, was confiscated and banned. The leading character of this book was Fethullah Gülen, the US-based Islamic preacher, leader of the Gulenists religious group, and former ally of the ruling government. Gulenists are now alleged to be a terrorist organisation which is a parallel state structure and responsible for the July 2016 failed coup.

During a 2012 interview, Ahmet Şık said: “[n]ow the state pretends that it is putting the key figures of the deep state on trial through the Ergenekon case, exposing and judging these people, but I don’t believe that’s happening. It’s just an illusion”.

Şık and Şener were held in pre-trial detention for over a year, from March 3, 2011 to March 12, 2012. During their detention, they were effectively prevented from contesting the legitimacy of their imprisonment because they were unable to access their case files.

In two separate judgments, the ECtHR found that Turkey violated Şık and Şener’s rights under Articles 5(3) (right to liberty and security), 5(4) (right to have the lawfulness of detention decided speedily) and Article 10 (freedom of expression) of the European Convention on Human Rights. Significantly, the ECtHR found that the detention of Şık and Şener was “liable to create a climate of self-censorship” for others reporting on the Turkish Government. The Government of Turkey was ordered to pay € 10,000 and € 20,000  in damages to Şık and Şener respectively.

Şık and Şener were acquitted in April 2017 by the Istanbul 18th High Criminal Court, alongside 12 other co-defendants, due to the lack certainty that they had committed the alleged crime.

Legal framework

Article No. 220(7) TCK is a controversial criminal provision, especially when applied in combination with Article 314 TCK. It provides that “any person who aids and abets an organisation knowingly and willingly, although he does not belong to the structure of that organisation, shall also be sentenced for the offence of being a member of that organisation”. Similarly, an individual committing an offence together with and on behalf of an armed organisation, although he is not a member, shall also be sentenced for being a member of such an organisation.

The application of Article 314 in combination with Article 220(6) and (7) has been frequently seen in the last decade. For example, in 2008, the Turkish Supreme Court held that taking part in a public demonstration on the calls of pro-Kurdish media outlets and shouting slogans in support of Öcalan (leader of the Kurdistan Workers’ Party – PKK) are considered crimes committed on behalf of a terrorist organisation.^[1] In this case, the Supreme Court annulled the judgment of the Diyarbakir Assize Court stating that in order to be accused of acting on behalf of an organization the person should have done “an individual call to a person and not to an undefined collective”.^[2] In another case, the Supreme Court convicted an individual for stating that “[i]f it is a crime to refer to Öcalan as Mr. Öcalan, I hereby commit this crime and denounce myself”.^[3] This statement was deemed to be done in the context of an online campaign instigated by a terrorist organization.

Therefore, in these cases, the Turkish Supreme Court established that the defendants   could be sentenced for being a member of the organization even where no “organic relationship” with an armed organization could be proven. In the past, the Supreme Court’s case law looked at the “continuity, diversity and intensity” of the actions when evaluating the existence of an “organic relationship”: namely, it analyzed if the defendants were acting knowingly and willingly within the hierarchical structure of an organization. However, with the more recent interpretation, Article 314 and Article 220(6) and (7) may now still be applied even if this kind of relationship cannot be proven.

Furthermore, Articles 314 and 220(6) and (7) raise questions of foreseeability because of the low evidential threshold being applied. Freedom House noted in 2015 that this Article “with its broad definition of […] membership, continued to be invoked against journalists, especially Kurds and those associated with the political left”. Similarly, the 2013 “Report on Turkey” by Human Rights Watch underlined that Turkish prosecutors perceive certain civil and political activities as having the same overall objective as a terrorist group and, consequently, “individuals have been prosecuted […] solely for their engagement in peaceful and […] lawful pro- Kurdish activities”.

Continuing oppression: the Cumhuriyet case

On December 29, 2016, Ahmet Şık was arrested again on terrorism-related charges: he is one of the 4 defendants of what has come to be known as the “Cumhuriyet trial” who is still in pre-trial detention today. During the first interrogation with the prosecutor, he was asked about some tweets he had sent. For example, in October 2016, he tweeted that “[t]he Gülen movement and AKP are both complicit in crime. Fethullah Gülen and Recep Tayyip Erdoğan should be tried together.”

“Ne istedilerse verdiklerini” de ne isteyip de vermediklerinde savaş çıktığını da unutalım/konuşmayalım istiyorlar.

— ahmet şık (@sahmetsahmet) 20 ottobre 2016

As a Cumhuriyet headline reads, Ahmet Şık was “once jailed by Fettullahist Terror Organization (FETÖ), [and] now [he is] remanded for FETÖ involvement”. This headline refers to his previous arrest and detention where he had been jailed for writing a book that was against the Fettullahists. His detention order charged him with propaganda for FETÖ, the Revolutionary People’s Liberation Party/Front (DHKP-C) and the PKK. Subsequently, his indictment only accused him of aiding and abetting the DHKP-C and the PKK, and the FETÖ’s charge was dropped. According to the Cumhuriyet’s lawyers and many analysts, it happened because such a charge was too difficult to assimilate with the previous journalistic and judicial history of the journalist.

Moreover, during the prosecution investigation, he was asked about the meaning of his tweets. The implication being that Ahmet Şık could be found liable under Article 301 TCK for “publicly denigrating the Republic of Turkey, its judiciary, military and security forces”. Article 301 TCK is a highly controversial provision, and has been used to charge, among others, the writer Orhan Pamuk, the journalist Fırat (Hrant) Dink, and the Academics for Peace. Furthermore, Article 301 leaves room for broad interpretations of its language, which in turn leads to the punishment of denigration of the entirety of “national and moral values which is composed of human, religious and historical values as well as of national language, national feelings and traditions”. Following the investigation by the prosecution, the charge was dropped in Ahmet Şık’s indictment.

In May 2017, Ahmet Şık applied to the ECtHR complaining that the charges and pre-trial detention amounted to an infringement of his rights to liberty and security (Article 5 of the European Convention on Human Rights) and his right to freedom of expression (Article 10 of the Convention). Moreover, he argues a violation of Article 18 of the Convention because his detention was in response to his criticism of the government.

After four hearings of the Cumhuriyet trial, Ahmet Şık is still being held in pre-trial detention. The international community is carefully following this trial, and a group of international organizations working on media freedom issues intervened in the 2017 cases filed before the ECtHR by Şık and the other Cumhuriyet defendants.

The next hearing of the Cumhuriyet trial is scheduled for December 25-26, 2017.

Notes:

^[1]           General Criminal Board of the Court of Cassation, E. 2007/9-282 K. 2008/44.

^[2]           Diyarbakır Assize Court, May 31, 2007, quoted in Gülcü v. Turkey, Application No. 17526/10, January 19, 2016, Para. No. 58.

^[3]           E. 2010/15798 – K. 2012/7455. It appears that this case is currently pending before the General Criminal Board of the Court of Cassation.