Turkey: Concerns for freedom of expression deepen after referendum

On 16 April 2017, President Erdogan declared victory in a constitutional referendum, granting him significantly increased presidential powers and enabling the Turkish authorities to further dismantle the current system of democratic checks and balances. The referendum took place under a state of emergency, and was marred by widespread violations of the right to freedom of expression and other human rights. The outcome of the referendum is likely to jeopardise guarantees for human rights in Turkey, already under sustained attack.

 “The ‘Yes’ result enables the incorporation into law of many of the temporary emergency powers that Erdogan invoked in the wake of the failed coup attempt in July 2016, which have been systematically used to stifle dissent over the past months,” said Katie Morris, Head of the Europe and Central Asia Programme at ARTICLE 19.

“By removing guarantees of political and judicial oversight over the executive, the constitutional amendments mean there will be little to stop President Erdogan from completely immobilising remaining independent media and political opposition”, she added.  

ARTICLE 19 calls on the government of Turkey to ensure the full protection of the right to freedom of expression and other human rights following the referendum outcome. Other States, including through European and International intergovernmental bodies, must redouble their efforts to ensure the Turkish government upholds human rights, democracy and the rule of law.

An assault on constitutional guarantees of democracy and protections for human rights

According to the State-run Andalou news agency the Turkish population voted 51.18 percent to 48.82 percent in favour of 18 proposed amendments to the Turkish Constitution. The opposition is calling for an annulment of the results, alleging multiple violations of electoral law. After the referendum results were declared, President Erdogan again raised the prospect of re-introducing the death penalty, which could result in Turkey leaving the Council of Europe and could potentially be applied to those facing serious criminal charges on the basis of their expression. Following the referendum, the state of emergency was also immediately renewed by the cabinet for a further three months allowing the continuation of extraordinary measures which have weakened the rule of law in Turkey and enabled an unprecedented crackdown on the media. The constitutional amendments fundamentally alter Turkey’s democratic path and will grant the president powers to rule by decree – ensuring that a power he has enjoyed under the state of emergency becomes a permanent state of affairs.

The constitutional amendments threaten guarantees for democracy and further endanger human rights protections in Turkey. Prior to the referendum, the Venice Commission, an independent commission of legal experts affiliated with the Council of Europe, warned that the constitutional changes would “lead to an excessive concentration of executive power in the hands of the president and the weakening of parliamentary control of that power”, creating a system which “lacks the necessary checks and balances required to safeguard against becoming an authoritarian [regime].”

The Venice Commission also raised concerns that the amendments allow the President to control judicial appointments, severely jeopardising the independence of the judiciary. Judicial independence had already been seriously undermined through legal changes in 2014 allowing the Justice Minister more control over the High Council of Judges and Prosecutors. While most of the constitutional amendments brought about through this referendum will come into effect in 2019, the changes will immediately give President Erdogan increased authority over the High Council of Judges and Prosecutors, further cementing the domination of the executive over the judiciary. Since the coup attempt in July 2016 and the declaration of the state of emergency, judges have been subject to criminal prosecutions, and have been removed from their positions without ensuring due protections for the independence of the judiciary. ARTICLE 19 has also observed trials of journalists, which were visibly politically motivated. 

Restrictions on freedom of expression during campaigning period

The referendum took place in an environment that was far from free and fair, with people denied access to adequate and equitable information on campaigns. There were very limited opportunities for opposition and independent media to argue in favour of a ‘no’ vote to the proposed amendments, against a backdrop of a severe crackdown on freedom of expression.

Preliminary conclusions issued by OSCE-ODIHR and Council of Europe election observers have criticised the referendum, arguing that it was ‘contested on an unlevel playing field, and the two sides in the campaign did not have equal opportunities’, to make their case to the voters. They also raised concerns that ‘under the state of emergency… fundamental freedoms essential to a genuinely democratic process were curtailed.’

Since the failed coup attempt and in the run-up to the referendum, several members of opposition political parties have been arrested on terrorism-related charges, thousands of public employees, including academics and opponents to the constitutional reforms, were dismissed in February, and some of the most outspoken “No” campaigners were arrested. In an interim monitoring report, OSCE election observers noted that the ‘No’ campaigners had been subject to bans, police interventions, and violent scuffles at their events, while the ‘Yes’ campaign had dominated television coverage of the referendum.

Moreover, election monitors reported that the ongoing restrictions on freedom of expression, including the closure of media outlets and arrests of journalists, further undermined the referendum.

Recommendations

Turkey is a party to the International Covenant on Civil and Political Rights, and of the European Convention of Human Rights, and is therefore obliged to protect human rights, including the rights freedom of expression and the right to a fair trial.

Electoral violations during the referendum campaign, and the proposed amendments clearly contravene OSCE commitments, Council of Europe standards and other international obligations regarding freedom and equality in the campaign. Turkey’s international partners and the guardians of these bodies must respond strongly to the constitutional amendments, making clear that Turkey must guarantee the independence of the judiciary. They must use all their leverage to work with Turkey to promote observance of its international commitments.

ARTICLE 19 calls on Turkey to:

• End the state of emergency and reinstate rights and freedoms curtailed by the emergency decrees;
• Immediately and unconditionally release all writers, journalists and media workers detained for exercising their right to freedom of expression;
• Guarantee the independence of the judiciary;
• Ensure forthcoming OSCE-ODIHR recommendations are fully implemented, in particular those related to freedom of expression and freedom of the media;
• Ensure that the death penalty is not reintroduced.

ARTICLE 19 recommends to the international community:

• For Member States of the UN Human Rights Council to raise the deteriorating situation for freedom of expression in Turkey during its 35^th Session in June 2017.
• Make clear that any attempt to reinstate the death penalty is unacceptable.
• Specifically, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe should reinstate full monitoring of Turkey.