Twenty-one members of GIYAV faced legal proceedings on the basis of article 169 of the Turkish Penal Code (TPC) concerned with "abetting and harboring an illegal organisation". The members were accused, amongst others, of using such expressions as "Kurdish mother tongue", "multi-culturalism", "forced migration" and "state of emergency practices".
The Adana State Security Court acquitted GIYAV members for violating article 169 and ordered that legal and administrative documents confiscated earlier this year by the Public Prosecutor be given back to the organisation. Indeed, due to the change brought by Article 2 of Law N°4928 (6th harmonization package) to article 169 of the TPC (deleting the statement "... and facilitates its actions in any way" from the text), Turkish courts are no longer able to charge and condemn people on the basis of article 169 for giving presentations in panels, signing/distributing petitions, using the expression "Kurdish mother tongue" or denouncing violations.
However, seven GIYAV members - ie. Mustafa Erdoglu, Kadir Arikan, Hikmet Özcan, Mehmet Barut, Ayse Bakaç, Remzi Erkut and Ömer Dogan, who were members of GIYAV executive board in April 2002, when the judicial proceeding was opened - will be referred to the Mersin Penal Court of first instance on thebasis of article 312/1 of TPC ("praising a crime").(2)
The Observatory and the EMHRN welcome the acquittal of GIYAV members. However our organisations are worried about the continuation of judicial proceedings against seven of the organisations’ members. Furthermore, our organisations are concerned that Article 312 of the TPC may now be used as a way to get round the amendments made to Article 169, with the aim to go on targeting human rights defenders. We are worried that this might be the case in the coming trial of the seven GIYAV members as well as in other pending trials in Turkey. The use made of the possibilities to circumvent these recent legal changes clearly shows their limitations.
Our organisations are finally concerned by the fact that intelligence reports submitted by the prosecutor to the SSC have been used as evidence against the defendants.
The Observatory and the EMHRN urge the Turkish authorities to:
1. drop the charges against the seven members of GIYAV before the Mersin Penal Court of first instance on the grounds of article 312/1 of the TPC, since they only aim at limiting their freedom of expression as human rights defenders ;
2. stop any kind of repression and judicial harassment against human rights defenders in Turkey, especially by using Article 312 to silence any person, who advocates for a democratic, political and peaceful resolution of the Kurdish question;
3. conform wirh the provisions of the Declaration on Human Rights Defenders, adopted by the United Nations General assembly on December 9, 1998;
4. urgently to comply with to the accession criteria to join the European Union by implementing the recently adopted legislative reforms without delay.
Note :
(1) GIYAV, whose mandate is to provide economic, social, cultural and legal assistance to persons subjected to forced migration, including internal displaced women and street children, was founded in 1999 in Mersin by a group of well-known persons including law practitioners, human rights advocates, academics and NGO representatives.
(2) Article 312 of the TPC has fallen out of the SSC jurisdiction and has been included in the jurisdiction of the penal courts of first instances following the adoption of the 5th harmonization package in June 200 by the Turkish parliament.