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Fol­low­ing a peti­tion addressed to the Euro­pean Court of Human Rights (ECHR) which had exam­ined a file brought to its atten­tion, the Turk­ish gov­ern­ment has acknowl­edged that jour­nal­ist Zehra Doğan’s pre­sump­tion of inno­cence had been vio­lat­ed and said it would pay her an indem­ni­ty in the amount of 1 350€.

The mat­ter — brought before the ECHR at the request of jour­nal­ist and artist Zehra Doğan’s lawyers — was decid­ed on March 17 2022  in a peti­tion call­ing on Turkey to pay an indem­ni­ty. In this case, the Turk­ish State admit­ted that, indi­vid­u­als sen­tenced for “pro­pa­gan­da for a ter­ror­ist orga­ni­za­tion” could not be described as  “ter­ror­ists” or as “mem­bers of an ille­gal orga­ni­za­tion”, as such, if that charge had been dropped in the pro­ceed­ings, and that pen­i­ten­tiary admin­is­tra­tions and judges exe­cut­ing the sen­tences,  by fol­low­ing the oppo­site tack, fol­lowed prac­tices “vio­lat­ing the pre­sump­tion of innocence.”

This is a legal argu­ment based on plain log­ic as well as on the prin­ci­ple of the indi­vid­u­al­iza­tion of sentences.

This touch­es on an extreme­ly com­mon prob­lem inside Turk­ish pris­ons. And most of the judg­ments devoid of evi­dence for such, “evok­ing” the belong­ing to an “orga­ni­za­tion” and thus, “ter­ror­ism” accord­ing to the Turk­ish State, lead to impris­on­ments in secu­ri­ty cell blocks, with no pos­si­bil­i­ty of ben­e­fit­ing of the right of trans­fer to a more “open” prison.

In 2015–2016, Zehra Doğan, one of the founders and edi­tors of the fem­i­nist press Agency JINHA cov­ered events in a Nusay­bin under cur­few. The agency was banned and shut down by a Law-decree at the end of Octo­ber 2016. As for Zehra, she was arrest­ed on July 23 2016, put on tri­al, con­demned and impris­oned for “pro­pa­gan­da”. She was lib­er­at­ed on Feb­ru­ary 24 2019 from the women’s high secu­ri­ty prison of Tar­sus, hav­ing com­plet­ed her sen­tence of close to 2 years, 9 months and 22 days.

How­ev­er, dur­ing the peri­od of Zehra Doğan’s impris­on­ment, her rights such as that of “trans­fer to an open prison” were blocked under var­i­ous pre­tences. Zehra Doğan was asked to sub­mit a writ­ten request indi­cat­ing that “she had left the ille­gal orga­ni­za­tion, and was there­fore no longer a mem­ber” and that “she wished to leave the block of polit­i­cal pris­on­ers”. Which amounts to ask­ing some­one who is not a mem­ber of any orga­ni­za­tion what­so­ev­er to “leave the orga­ni­za­tion” of which she is not a mem­ber, in order to exer­cise her rights. Her lawyer Olguner Olgun solicit­ed the ECHR on this basis, while under­lin­ing that these gen­er­al­ized prac­tices in Turk­ish pris­ons, amount to vio­la­tions of the pre­sump­tion of innocence.

The ECHR con­veyed the recog­ni­tion of this vio­la­tion of rights to the gov­ern­ment of the Repub­lic of Turkey. In a “uni­lat­er­al dec­la­ra­tion”, the gov­ern­ment request­ed the lift­ing of the peti­tion while announc­ing it admit­ted the vio­la­tion of the pre­sump­tion of inno­cence, and that an amount of  1 350€ would be paid to Zehra Doğan as an indem­ni­ty. The journalist’s lawyers com­ment­ed on the mod­est amount of the indem­ni­ty. Zehra and her lawyers also under­lined the fact that “it would be more effi­cient for the Court to reach a deci­sion resolv­ing the sys­tem­at­ic vio­la­tions to the Euro­pean Con­ven­tion of human rights in Turkey”.

For its part, the ECHR unan­i­mous­ly resolved that since the Turk­ish gov­ern­ment had acknowl­edge the “vio­la­tion”, there was no need to exam­ine the peti­tion any fur­ther, although it did declare that “the indem­ni­ty offered by the gov­ern­ment  for the vio­la­tion of rights detailed in the Con­ven­tion was not suf­fi­cient”.

Accord­ing to lawyer Olguner Olgun, although the gov­ern­ment thus avoid­ed the estab­lish­ment of con­strain­ing jurispru­dence, nonethe­less, the ECHR deci­sion con­sti­tutes a guide for pen­i­ten­tiary admin­is­tra­tions and judi­cia­ry author­i­ties in sim­i­lar sit­u­a­tions. “We would have pre­ferred that a deci­sion be reached by the ECHR that would have fun­da­men­tal­ly changed restric­tive and ille­gal prac­tices from all judi­cia­ry author­i­ties, requir­ing per­haps legal arrange­ments.” He insist­ed: “This case is not an iso­lat­ed or unique prob­lem, in the regime of exe­cu­tions of sen­tences, but a sys­tem­at­ic and struc­tur­al ille­gal­i­ty, applied in a gen­er­al way across pris­ons. But by accept­ing and noti­fy­ing through a “uni­lat­er­al dec­la­ra­tion” that the pre­sump­tion of inno­cence had been vio­lat­ed and announc­ing the pay­ment of an indem­ni­ty, the gov­ern­ment fore­stalled the pos­si­bil­i­ty a tech­ni­cal­ly con­strain­ing jurispru­dence might result from a judge­ment. How­ev­er, we still think that the   dec­la­ra­tion of accep­tance of the gov­ern­ment as well as the ECHR deci­sion on this basis, will serve as guides for pen­i­ten­tiary admin­is­tra­tions and judi­cia­ry author­i­ties, in sim­i­lar situations.”

Appeals to the ECHR whose judge­ments are com­pelling for mem­bers of the Coun­cil of Europe — of which Turkey is one — are con­stant­ly side­stepped by the regime using legal quib­bling to do so, as is the case here by fore­stalling the final­iza­tion of the judge­ment in order to avoid its influ­ence on jurispru­dence. In oth­er cas­es, when there is a peti­tion for a lib­er­a­tion, Turkey does not com­ply, argu­ing that oth­er accu­sa­tions are still pend­ing, as is the case for Sela­hat­tin Demirtaş.

For exam­ple, retroac­tive­ly, Zehra Doğan’s case could apply in the Özgür Gün­dem case, still ongo­ing, and in which the accused have seen their files split off into sep­a­rate accu­sa­tions, dur­ing hear­ings and tri­als, as is the case for Aslı Erdoğan. None of the impris­on­ments in gaols of sin­is­ter rep­u­ta­tion have been avoided.

A façade of Law is thus put for­ward in the worst of auto­craties, who always insist on pre­sent­ing a “demo­c­ra­t­ic” face over their ruins of per­ma­nent injus­tice.

Photo: a snapshot taken at the Zehra Doğan exhibition in Angers, January 2018. 
Translation from French by Renée Lucie Bourges

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