The honouring of obligations and commitments by Türkiye
Addendum to the report
| Doc. 15618 Add.
| 10 October 2022
- Co-rapporteur :
- Mr John HOWELL,
United Kingdom, EC/DA
- Co-rapporteur :
- Mr Boriss CILEVIČS,
Latvia, SOC
- Origin
- Addendum to report Doc. 15618, approved unanimously by the committee on 10 October
2022. 2022 - Fourth part-session
1 Introduction
1. We would like to provide updates
on the latest developments relating to two main issues raised in
our report of 14 September 2022.
2 Supervision
of the execution of judgments of the European Court of Human Rights
by the Committee of Ministers: latest decisions concerning the cases
of Mr Kavala and Mr Demirtaş.
2. As mentioned in our report,
the European Court of Human rights ruled on 11 July 2022 that “Türkiye
has failed to fulfil its obligation under Article 46.1 [binding
force and execution of judgments] to comply with the judgment delivered
on 10 December 2019, which called on the Government to end the applicant’s
detention and secure his immediate release”.
3. On 20-22 September 2022, the Ministers’ Deputies, supervising
the execution of the judgments of the European Court of Human Rights,
“urged the competent Turkish authorities to eliminate all the negative consequences
of the criminal charges brought against the applicant, in particular
by ensuring that he is immediately released”. The Deputies also
invited the Turkish authorities to provide information “on the pending domestic
procedures including indicative average timeframes, at the earliest
opportunity, and in any event no later than 13 October [2022]”.
Note
4. In addition, the Deputies “encouraged the Chair of the Committee
of Ministers to discuss with the President of the Parliamentary
Assembly of the Council of Europe on further steps that could be
taken by the Committee if the applicant remains in detention”.
Note
5. We welcome this decision, insofar as it is the first time
that the Committee of Ministers refers to the Assembly in the supervision
of the Kavala ruling. Both the Committee of Ministers and the Assembly
have their own means to push for the implementation of Court judgments
– and they should make full use of them.
6. In the case of Mr Kavala, where the Court found a violation
of article 18 of the Convention, where it clearly and unequivocally
concluded, in its Grand Chamber judgment (Article 46.4) of 11 July
2022, that the Turkish authorities did not implement the 2019 ruling,
and where an infringement procedure was launched, the President
of the Assembly and the Chair of the Committee of Ministers should
discuss further action and envisage how and when additional steps
should be undertaken. This could include the resort to the complementary
joint procedure in response to a serious violation by a member State
of its statutory obligations, as foreseen in the Rules of Procedure,
Note if
Türkiye’s failure to comply with its obligations should persist.
7. Concerning the case of Mr Demirtaş, the Deputies await “further
information on this issue (…) before the Committee can make its
decisive assessment on the individual measures required to remedy
the violations found by the Court”. However they noted “with the
utmost concern that his individual application challenging his current
detention has been pending before the Constitutional Court since
7 November 2019 and underlined the urgent need that the applicant’s
complaint be examined rapidly, and in a manner compatible with the
spirit and conclusions of the Court’s judgment, including in particular
its reasoning under Article 18 of the Convention” and “strongly
urged the Turkish authorities, again, to assure the applicant’s
immediate release, underlining that Mr Demirtaş has now been held
in pre-trial detention since 4 November 2016”.
Note
3 Preparation of
the 2023 presidential and parliamentary elections: opinion of the
Venice Commission on the draft amendments to the Turkish Penal Code
regarding the provision on “false or misleading information”
8. In paragraph 123 of our report,
we expressed our concerns – especially in the context of the upcoming presidential
and parliamentary elections in 2023 – about a bill submitted to
parliament on 26 May 2022 criminalising “disinformation”. Those
who “publicly disseminate false information about the country's
domestic and foreign security, public order and general health,
with the sole aim of creating anxiety, fear or panic among the public
and in a manner that is liable to disturb public peace”
Note could face prison sentences
of one to three years.
9. At its meeting of 14 September 2022, the Monitoring Committee
decided to request an opinion from the Venice Commission on the
draft amendments to the Turkish Penal Code regarding the provision
on “misleading information”. The Venice Commission published an
urgent opinion on 7 October 2022.
Note We thank the Venice Commission
for having prepared it in due time for our debate in the Assembly.
10. The Venice Commission notes that the concepts used are very
confused, and that the draft amendment contains several terms, notably
“misleading information”, “false information to mislead,” “publicly disseminating”
(or “overtly disseminating”), “disturbance of the public peace”,
“general well-being” (or “public health” or “general health”), “in
a way conducive”, which are “very broad and vague, and open to different interpretations”.
In addition, the confusion surrounding the meaning of the terms
in the original version and in the different translations confirms
that these terms are not ‘sufficiently clear’”.
Note There
is no definition of “false or misleading information” in Turkish
law. The authorities indicated that “the decision as to whether
a content entails misleading, false information will be taken by
the courts, which will avail themselves of expert witnesses”. However,
the Commission notes in this respect that there are “no criteria
in the law against which the expert witnesses could make this assessment
objectively and consistently”. The Venice Commission therefore recommends
that the criteria to assess the authenticity of information be included
in the law.
11. The Venice Commission has made a comparative study about legislation
in place in several countries.
Note The
European countries cited (by the Turkish authorities) as inspiration
for criminalising “false or misleading information” “have not actually
done this, but rather introduced obligations on internet platforms
regarding illegal contents”.
12. The Venice Commission acknowledges that the draft amendment
pursues a legitimate aim: “information disorder (misinformation,
disinformation and malinformation) is indeed one of the important
issues of these days” and that “there is globally a need to tackle
the serious problems of disinformation campaigns, with presumed
impact on election results and subsequently on governments and the
constitutional order of states”.
13. For the Venice Commission, “in light of the existence in the
Turkish legal system of legislation targeting the most dangerous
aspects of ‘false or misleading information’, so serious as to qualify
as offence to national security, public order and safety”, there
is “no pressing social need to introduce the criminal provision
at stake, and further open the door to possible threats and arbitrary
restrictions of freedom of expression.”
14. The question of liability of the journalist quoting someone
else’s statement and whether intermediaries (internet service providers,
ISPs) and social media platforms might “disseminate” “false or misleading information”
in the meaning of the draft provision (and if so, under what circumstances)
are important, and “should be answered directly in the law. Moreover,
it would prevent excessively broad application of the law that would
violate Art. 10 of the Convention”. The Venice Commission also stresses
the need “to affirm and protect the right to anonymity on the internet,
regulate and strictly limit the creation and use of profiles. It
is also essential to ensure easy access by users to their personal
data in hands of the ISPs, including personal data for the information
they reveal relating to political opinions in particular”.
15. As to the severe penalties envisaged (from 1 to 3 years of
prison), even if, under Turkish law convictions of less than three
years do not normally result in imprisonment, as indicated by the
authorities,
Note the Venice Commission stresses nevertheless
that, “irrespective of actually being imprisoned, a criminal conviction
is a serious matter which also affects the criminal record of a
person with ensuing limitations and adverse effects”.
16. The Venice Commission concludes that “the chilling effect
of this draft provision with the heavy sanctions is likely to lead
to widespread self-censorship in a country that is already struggling
in an environment hostile to an open, robust public debate. In addition,
the liability of online platforms and other intermediaries as major means
of dissemination of information will inevitably amplify the impact
of the (self-)censorship”.
17. Another aspect rightly pointed out by the Venice Commission
is that “although it may be possible, in principle, to seize the
Constitutional Court of Türkiye to assess the constitutionality
of the Penal Code amendment, if enacted, its judgment cannot be
expected earlier than the elections take place. The harm to the exercise
of freedom of speech before elections would be then irreparable
even if the Constitutional Court of Türkiye later ruled on its unconstitutionality.”
18. Noting that “there exist alternative, less intrusive measures
than criminalisation designed to counter the information disorder
which are considered by several other states to be effective”, the
Venice Commission has therefore “serious doubts regarding the necessity
in a democratic society of the criminal response to ‘false or misleading
information’ envisaged with the draft amendment in question”.
19. The Venice Commission therefore concludes that “the interference
with the freedom of expression which the draft provision under consideration
would produce in Türkiye if enacted would neither be ‘necessary
in a democratic society’ nor proportionate to the legitimate aims
of prevention of disorder and protection of national security, of
health and of rights of others”. In addition, the Venice Commission
is particularly concerned with potential consequences of such provision,
namely “the chilling effect and increased self-censorship, not least in
view of the upcoming elections in June 2023”. It subsequently recommends
the Turkish authorities “not to enact the draft amendment of Art.
217/A to the Turkish Penal Code”.
20. On 4 October 2022, the parliament started to debate this draft
“disinformation bill”, including the amendment to the Penal Code
on “false or misleading information”. This triggered renewed protests
by the opposition and by journalists. In light of the urgent opinion
of the Venice Commission, we reiterate our deep concerns about the
possible impact such legislation could have on pluralistic and free
debates, especially ahead of the 2023 presidential and parliamentary
elections, and therefore urge the parliament not to enact this draft
amendment.
4 Proposed amendments
to the draft resolution
21. As a result of the above-mentioned
developments, we would like to propose the following amendments to
the draft resolution on the honouring of obligations and commitments
by Türkiye (
Doc 15618):
Amendment A
After paragraph 8.2, add the following paragraph:
“In
this respect, the Assembly welcomes the decision of the Ministers’
Deputies of 22 September 2022 related to the implementation of the
Kavala judgment and its reference to the Assembly. It invites the President
of the Assembly and the Chair of the Committee of Ministers to maintain
close contacts and make full use of the means at their respective
disposal, if Türkiye’s failure to comply with its obligations should
persist.”
Amendment B
At the end of paragraph 8.4, add the following sentence:
“The
Assembly also urges the authorities to ensure that Mr Demirtaş’
individual application challenging his current detention, which
has been pending before the Constitutional Court since 7 November
2019, be examined rapidly, and in a manner compatible with the spirit
and conclusions of the Court’s judgment, including in particular
its reasoning under Article 18 of the Convention, as recalled by
the Committee of Ministers on 22 September 2022.”
Amendment C
In paragraph 10.7, replace the last two sentences with the
following text:
“The Assembly is concerned by the draft amendment
of Article 217/A to the Turkish Criminal Code that would criminalise
the dissemination of “false or misleading information” and lead
to prison sentences. For the Venice Commission, such amendment would
amount to an interference with the freedom of expression which would
‘neither be “necessary in a democratic society’ nor proportionate
to the legitimate aims of prevention of disorder and protection
of national security, of health and of rights of others”. Beside
its potential detrimental impact, namely, the chilling effect and
increased self-censorship, this amendment could cause irreparable
harm to the exercise of freedom of speech before elections. The
Assembly is therefore very concerned about the possible consequences
of this legislation in view of the presidential and parliamentary
elections planned in 2023 and urges the Turkish authorities, in
light of the Venice Commission’s urgent opinion of October 2022,
not to enact this draft amendment to the Criminal Code.”
