Ali Duran Topuz
Impossible crime, unattainable defense: Challenges under Turkey's anti-terror law
Being accused of a crime deemed "impossible" may seem like an odd paradox, but for those facing such charges under the sixth article of the Anti-Terror Law, it is a reality worth reckoning with. Recently, I found myself in a position where I had to testify against the accusation of "targeting public officials." Surprisingly, there were no detentions, and I was invited to testify, initially feeling quite at ease. Legally speaking, the accusation seemed weak but nearly impossible to uphold.
However, as I delved into my defense strategy, I realized the challenge wasn't merely proving my innocence but the impracticability of committing the alleged crime. Being accused of an "impossible crime" leaves little room for defense, as it fails to persuade those who make the accusations.
This brings me back to the charge stated in the first paragraph of the sixth article of the Anti-Terror Law.
Aktar's eye-opening remark
Recent events involving Evrim Kepenek, Sibel Yukler, Evrim Deniz, Delal Akyuz, and Firat Can Arslan cast further light on the matter. The individuals above were recently detained based on the same article. Arslan was arrested, while the former four were released under judicial control conditions. The detention of these journalists was linked to their actions concerning the relocation of judges and prosecutors in the Official Gazette.
Renowned lawyer Mehmet Emin Aktar, former president of the Diyarbakir Bar Association, provided a clear summary of the situation:
"The detention of five journalists who retweeted something which was publicly available on the website of the Council of Judges and Prosecutors and published in the Official Gazette, not only violates press freedom but also infringes on the right to personal security, as investigative power is arbitrarily misused."
Unravelling the anti-terror law
Aktar's statements shed light on the impossibility of mounting a defense under these circumstances. The accusation itself is fundamentally impossible, rendering any defense superfluous. This unsettling reality poses a grave concern.
Let's examine the law's article closely:
Article 6: Those who announce or publish that crimes will be committed against persons by terrorist organizations or the identities of public officials who have taken part in the fight against terrorism in such a way that it can be understood to whom they are directed, by specifying or not specifying names and identities, or those who target persons in this way, shall be sentenced to imprisonment from one year to three years.
First and foremost, let's address a basic definition within this (poorly written) article: "Those who disclose and publish the identities of public officials involved in the fight against terrorism."
Who do these "public officials" refer to? Could they include judges and prosecutors?
If we follow the prosecutor's interpretation of the article, which is conducting the investigation, the situation becomes perplexing: Judges' names are not secret. Prosecutors' names are not confidential. Their decisions and actions are not confidential (with the confidentiality of the investigation being an unrelated matter). This remains true even when they handle terrorism-related cases within the framework of the Anti-Terror Law, where trials are open to the public. Prosecutors' names appear in indictments, closing statements, objections, and appeals; judges' names are found in interim decisions, motions, and rulings.
Complete suppression of information flow
Considering this, it becomes evident that the "lawmaker" could not have regarded the "disclosure" of judges' and prosecutors' names as an act constituting the crime of targeting. Had that been the case, the law would have explicitly stated so. Such an interpretation would have mandated keeping these names secret, not written or published. The investigations conducted in this article highlight the absurdity of the legislature's approach!
As you may know, judicial proceedings are generally public, and decisions made during open trials are inherently public. Therefore, those who render these decisions are also public figures. Consequently, "targeting" cannot be done by disseminating general information. For instance, this article did not consider news articles reporting the names and professional histories of the committee responsible for the Abdullah Calan trial.
The law's article, stating "those who disclose or publish the identity of public officials who have taken part in the fight against terrorism," assumes that this identity is "undisclosed" and "unpublished." As a result, it does not apply to individuals whose names are already public. The third paragraph of the same article further supports this point:
"Those who disclose or publish the identity of informers violating Article 14 of this Law shall be sentenced to imprisonment from one to three years."
This provision clearly defines the crime of "disclosing and publishing the identity of informants." It underscores the concept's nature, as an informant's identity is meant to be kept secret. If their names were known, they wouldn't be informants. Hence, the "public officials who have taken part in the fight against terrorism," as mentioned in the first paragraph of Article 6, are individuals whose names must remain undisclosed for their safety, just like the informants referred to in the third paragraph. There are parallel articles in the MIT Law concerning individuals whose identities must remain secret and are endangered if revealed. Judges who make decisions in public trials and prosecutors who conduct investigations to ensure those decisions are implemented and contribute to the judgment are already known by name. Therefore, writing and publishing their names cannot constitute the crime of "targeting." If it did, they wouldn't sign their decisions.
In today's Turkey, the right to receive and impart information—freedom of expression in its broadest sense—has been effectively nullified. Any possible gaps are filled by distorting the law's articles and turning the investigation rules on their heads. This ultimately results in the complete suppression of information flow. The handcuffs put on Evrim Kepenek, visibly displayed in photographs, are not just restraints on her but are symbolic of a much more extensive control over information dissemination.