Tuesday, November 2, 2010

"Protesting as a Terrorist Offense"

Human Rights Watch (HRW) has released a stirring report documenting Turkey's restrictions on the rights to protest and freedom of association. Under Turkey's stiff Anti-Terrorism Law, it is illegal to attend demonstrations said to be sponsored or held in support of a terrorist organization. However, in recent years, Turkish courts have been applying a provision in the Turkish Penal Code making it illegal to be a member of a terrorist organization to convict protestors. The mere act of protesting -- or, to be more specific, to be seen as protesting in response by the PKK to do so -- can land one in prison. As HRW documents, both the Anti-Terrorism Law and the Turkish Penal Code are broadly and arbitrarily applied, and frequently result in Kurdish citizens serving long prison sentences for doing little more than attending a protest. From the report's summary:
Turkey’s Kurdish citizens have frequently protested publicly to express frustrations with the government’s policies towards their culture, status, and rights, and, in recent years, the imprisonment of Abdullah Öcalan, the PKK leader. For instance, on July 14, 2008, and from October 18 to 21, 2008, protests were held in various cities in Turkey against Öcalan’s prison conditions and alleged ill-treatment. Protests are also held every year on February 15, the day in 1999 that Turkish authorities captured Öcalan in Kenya and brought him to Turkey. The festival of Newroz/Nevruz (Kurdish and Turkish spellings in common usage in Turkey), the Kurdish New Year, on March 21, often elicits demonstrations as well as cultural celebrations. Protests took place prior to Turkey’s March 29, 2009 municipal elections. There are also fairly frequent localized protests in cities throughout southeast Turkey and in mainly Kurdish-populated districts of cities such as Adana. These typically involve groups of youths and children, who shout pro-Öcalan and PKK slogans, burn tires in the street, and respond to police orders to disperse by throwing stones.

In the past, courts in Turkey convicted these protestors under laws governing public order or of “making propaganda for a terrorist organization” (Article 7/2, Anti-Terror Law). Yet in recent years, criminal justice officials have deemed Kurdish protestors demonstrating against Turkey’s policies towards the Kurds to be “committing crimes on behalf of the PKK without being a member of that organization” (Article 220/6, Turkish Penal Code). As a result, they are prosecuted as if they were actually fighting the government as armed “members” of the PKK (Article 314/2, Turkish Penal Code). These serious charges, on top of more usual charges under the Law on Demonstrations and Public Assemblies, could result in sentences of 28 years in prison, or more, if there are repeated offenses. To date, the majority of adults convicted under these laws have received prison terms of between seven and 15 years. Prior to a July 2010 legal amendment, child protestors typically received prison sentences of between four and five years, though in 2010, at least several children were sentenced to seven-and-a-half years in prison.

Law enforcement authorities and the courts allege that the PKK and its representatives are organizing the demonstrations as part of a wider policy to promote civil unrest, and even uprising, among Kurds in towns and cities throughout Turkey. By way of evidence the government and courts point to the PKK’s decrees issued at various congresses, and the fact that senior PKK representatives use sympathetic media outlets to issue “appeals” to the Kurdish population to take to the streets in protest. Hence, the template for individual indictments includes an abstract overview of PKK history and policies, followed by a statement of the alleged specific criminal activities of the defendant. In none of the cases examined by Human Rights Watch had prosecutors submitted evidence to establish that the individual defendant either heard the PKK’s “appeal” or had been directly instructed or motivated by the PKK to participate in the demonstration, much less that the individual had any other specific link with the PKK or committed a crime under its orders.

The Turkish courts consider it no obstacle to conviction that the prosecution has failed to provide evidence of the defendant’s specific intent to support or aid the illegal activities of the PKK. The General Penal Board of the Court of Cassation has held that it is sufficient to show that sympathetic media outlets broadcast the PKK’s “appeals”—speeches by the PKK leadership calling on the Kurdish population to protest or raise their voices on various issues. Then the defendant, by joining the demonstration, is assumed to have acted directly under PKK orders. Yet even at extremely local demonstrations not announced in the media beforehand, protestors are routinely charged with acting under the orders of the PKK. In some cases, courts have held that the PKK’s “appeal” to participate in demonstrations is a continuous generic one, and therefore a specific instance of appeal to the population need not be proved.

This legal framework makes no distinction between an armed PKK combatant and a civilian demonstrator. In fact, demonstrators may be punished more harshly, because while combatants who turn themselves in may receive partial amnesty under the “Effective Repentance” provision in the Turkish Penal Code, there is no such provision to reduce the sentences of peaceful demonstrators who have never taken up arms. As a result, peaceful demonstrators with no clear PKK affiliation may be punished more harshly than PKK members who have actually served as guerrilla fighters.
Useful is the report's elaboration of how Turkish courts apply the Anti-Terrorism Law in conjunction with Article 314 of the Turkish Penal Code in order to secure protestors prison sentences that are certainly in disproportion to the offense, especially when it can be argued that the offenders are peaceably demonstrating. In one case, an illiterate mother of six was sentenced to seven years in prison for holding a sign with a message that read "the road to peace lies through Ocalan."

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