Greetings from the latest issue of The Freedom Observer,
Here's what we've monitored for you this week:
- Constitution: Can the Reconstruction of Cities be Arranged with the Presidential Decree of the State of Emergency?
- Law: The conviction of the head of Turkey's Medical Association, Prof. Korur-Financı,
- Economy: Record Current Account Deficit and Central Bank Reserve,
- Civil Society: Censorship and the new NGO law.
We wish you a pleasant reading,
Freedom Research Association
As in the previous Bulletin, the tense relations between the government and the opposition are at the forefront of the political agenda. At least until the elections, this situation is less likely to change. Before delving into this subject, we need to touch on a new development that concerns all of us as citizens of Turkey.
The latest "Human Freedom Index", prepared by two think-tanks (Cato Institute and Fraser Institute) based in North America, was announced on January 27. Accordingly, Turkey has gradually declined from 7.06 points in 2010, when it achieved the highest score in terms of general freedom level, to 5.71 points by 2022 and has fallen to 130th place among 165 countries.
Since Turkey's score in 2018 (reflecting the 2017 data) is almost the same (5.72), the current data of 5.71 means that the state of emergency still continues, even though it has been officially lifted. With this score, Turkey lags behind 26th in Armenia, 28th in [South] Cyprus, 43rd in Georgia, 87th in Kyrgyzstan, 107th in Kazakhstan, 113th in Tunisia and Kuwait, 119th place in Russia, and 129th in Qatar.
In addition, according to these data, Turkey received the lowest grade for "freedom of expression and information" with a score of 3.0, which is also below its general average. Turkey's "rule of law" score is similarly on the ground with 3.8 points.
Indeed, this embarrassingly poor record of our country on freedom and human rights is not surprising to us as citizens. The President of the Turkish Medical Association (TTB) and forensic expert, Prof. Dr. Şebnem Korur Fincancı, was the latest victim and an example of the government’s poor record in the human rights index. As we witnessed that Prof. Fincancı was sentenced to 2 years, 8 months, and 15 days in prison in the case where she was charged with "propagandizing for a terrorist organization" for saying that the allegations of using chemical weapons in the operations carried out by the Turkish army in Northern Iraq should be investigated by independent committees.
On the other hand, "Law No. 7418 on Amendments to the Press Law and Certain Laws", which was adopted by the Parliament in October last year and stipulated that those who spread "false information" are punished with imprisonment from 1 to 3 years, brought a new set of restrictions on the freedom of expression and press. These and similar regulations and judicial decisions based on them show that the above-mentioned statistics by the international organizations regarding the poor performance of freedom of expression in Turkey is, unfortunately, correct. This Law also exposes non-governmental organizations to the risk of being tried for up to three years in prison due to the opinions expressed on their platforms.
Behind other developments that spoiled Turkey's record, there lies the series of unconstitutional contradictions brought up by Tayyip Erdoğan's intention to run for the presidency for the third time and to decide on the re-election of the Turkish Grand National Assembly. If it takes place, this attempt will violate both the provision of the Constitution that a person can be a candidate for the presidency "at most twice" and the exceptional rule that the third time candidacy is possible only if the legislature decides to renew the elections while the president is in his second term in office.
Since all constitutional powers are under the control or tutelage of the president in the current system, it seems that there is no constitutional body or office - including the judicial one - to prevent these constitutional violations. The opposition, on the other hand, seems to be unwilling to take any action to prevent the president despite expressing this contradiction, probably in the hope that they can defeat Tayyip Erdoğan in the elections - and with the thought that this is more appropriate politically.
This is not the only obstacle that the main wing of the opposition, which came together at the "Table for Six", might face on the way to the general elections. The trap that the ruling bloc set for the opposition under the name of "liberating the headscarf" is about to be activated. As a matter of fact, the opposition's motion to make the ruling parties' proposal compatible with human rights was rejected by the representatives of the government in the Constitutional Commission. In this case, it seems that the AKP-MHP ruling bloc plans to put the opposition candidate in hot water in the presidential election by ensuring that their proposals are put to a referendum without any change and by making propaganda that the opposition is against the "freedom of the headscarf".
Meanwhile, the lawsuit filed at the Constitutional Court for the closure of the Peoples' Democracy Party (HDP) apparently continues in line with the expectations of the ruling bloc. The Supreme Court unanimously rejected the request of the respondent party to leave the proceedings of the case until after the election. Meanwhile, considering that the defendant Party will make an oral defense on March 14, it seems highly likely that the case will be decided before the elections and will result in a decision of "deprivation of treasury aid".
Speaking of the judiciary, it should be pointed out that the President of the Supreme Court Mehmet Akarca's criticisms that the Constitutional Court overstepped its authority by turning "individual applications" into a kind of appeal review and adopted a "judicial activist" attitude. It should be noted that this statement of the President of the Supreme Court is not pleasant not only in terms of its political meaning but also in terms of the President's own dignity. By doing so, the President wants to show that he stands by the political power against the Constitutional Court, which he sees as a rival. This outburst may also damage the President's own legal identity by making claims that have no legal basis. This, in turn, might give the impression that he does not have enough knowledge about the legal nature of the issue on which he makes such claims.
In the meantime, while it has been a common belief for some time that the Turkish Statistical Institute has been one of the institutions most affected by the corruption caused by the oppressive and favoritism politics in recent years, especially due to the unreliable inflation rates it has announced, now the statements made on behalf of the Central Bank put this institution also in the same category. As a matter of fact, judging by the President's unconvincing statement on January 26, the Central Bank has completely abandoned its main task of ensuring price stability and has undertaken the task of supporting political power just on the eve of the general elections. Indeed, according to President Kavcıoğlu's statement, inflation will decrease to 22% at the end of 2023 and to around 9% at the end of 2024. On the other hand, Turkey's energy costs will decrease in 2023, as energy costs will decrease both due to the decrease in prices and as a result of the domestic natural gas resources being put into service in March, and thus, the budget will be able to give a current surplus!
See you in the next Bulletin.
Erdoğan’s Run for the Presidency for the Third Time
Shortly after the debates about bringing the elections forward, which came to the agenda again when MHP leader Bahçeli said, "Let's finish this job in May," referring to the elections in the group meeting on January 17, President Erdoğan ended the discussions. In his statement, Erdogan said that it is appropriate to withdraw the presidential and parliamentary elections from 18 June to 14 May. After this statement, debates flared up about whether Erdogan can run for the presidency again, the legality of pulling the election forward, and whether the election law adopted on April 6, 2022 will be applied in the elections scheduled for May 14.
The constitutional provision that came into force with the constitutional amendment made in 2017 clearly states that a person can be "elected as President twice at most" (art. 101/2). In this case, there appears to be a constitutional obstacle before Erdogan's candidacy for the third time. However, there is an opportunity in the constitution that makes it possible for Erdoğan to be a candidate for the third time at the end of his second term in office. Considering this possibility in the 2017 referendum, the government added a provision that paved the way for Erdogan's third presidential term. This opportunity, however, is limited by a provision in the constitution: “If the Parliament decides to renew the elections in the second term of the President, the President can be a candidate once again” (art. 116/3). Considering the current composition of the Parliament, this seems rather unlikely: in order to postpone the election to an early date, one has to secure the 3/5 majority of the Grand National Assembly of Turkey, which is the affirmative vote of at least 360 deputies. However, this does not seem possible for the government without the support of the opposition parties.
In this situation where a qualified majority is not achieved in the parliament, pulling the election forward on May 14th can only be realized with the direct decision of the President to dissolve the parliament. In this scenario, if the president, not the parliament, decides to renew the elections, it would be unconstitutional for Erdoğan to be a candidate for the third time.
Another discussion about bringing the election date forward is about whether the changes made in the election law on April 6, 2022, will be applied in the elections planned to be held on May 14, 2023. Some jurists state that the election law is a law that regulates not only the election day but also the election process, so an election to which the current election law will be applied can only be announced in the Official Gazette after 6 April 2023. In this scenario, considering the 60-day election calendar, it is not possible for the elections to take place on May 14th. If the government insists on holding the elections on May 14th , the President must take the decision to renew the election on March 9th at the latest and publish it in the Official Gazette. In this case, the amendments made in the election law on April 6, 2022 will be illegal to apply in the elections to be held on May 14th.
Although these reservations are expressed by opposition parties and many jurists, the ruling bloc does not take these criticisms seriously. As a matter of fact, AKP group vice chairman Turan replied, "Let the YSK discuss Erdogan's candidacy. You, above all, announce your candidate". It should be noted that it is the norm in democratic countries that such legal debates revolve around high judicial bodies. However, in the recent past, the decisions of many judicial institutions, especially the YSK, that serve the interests of the political power confine this issue to the axis of politics and damage the credibility of the decisions to be taken from now on.
TTB President Prof. Korur Fincancı Sentenced to Prison
President of the Turkish Medical Association, Prof. Dr. Şebnem Korur Fincancı, was sentenced to 2 years, 8 months, and 15 days in prison by the Istanbul 24th High Penal Court at the hearing held on January 11, 2023, in the case where she was tried for the crime of making propaganda for a terrorist organization. Fincancı, who is a forensic expert, said in a television program that the allegations that chemical weapons were used in the operations carried out by the Turkish army in Northern Iraq in October should be investigated by independent committees. Korur Fincancı, who stated that there were people with convulsions and involuntary movements in the images shown to her, reminded her that international conventions should be implemented. She stated that when such a claim arises under the Convention of Banning the Use of Chemical Weapons, the research to be conducted must comply with the principles of the Minnesota Protocol.
Following these words, a defamation campaign was launched against Fincancı in the media close to the government, and an investigation was launched against her by the Ankara Chief Public Prosecutor's Office. Fincancı, who participated in the said program while she was in Germany, returned to Turkey and, through her lawyers, stated that she was ready to give a statement to the prosecutor's office. Despite this, Fincancı was detained in Istanbul, taken to Ankara, and arrested on 26 October. In addition, an investigation has also been initiated on the Turkish Medical Association.
The objections of Fincancı's lawyers against the detention on the grounds that the conditions of detention were not met, there was no strong suspicion of a crime against her, and there were no grounds for her detention were rejected. In the indictment prepared by the Prosecutor's Office, it was demanded that Fincancı be sentenced to up to 7.5 years in prison for "propagandizing for a terrorist organization". Ankara 4th High Penal Court gave a decision of lack of jurisdiction on the grounds that Fincancı's residence address is Istanbul. The first hearing of the trial held within the framework of the indictment accepted by the Istanbul 24th High Penal Court was held on 23 December. Due to Fincancı's wish to actually attend the hearing, her transportation from Ankara to Istanbul was carried out by land route. Fincancı's request to be transferred by plane due to her health problems was rejected by the Ministry of Justice.
The Ministry of National Defense requested to participate in the proceedings as an intervening party, and the request for intervention was rejected by the court. The court's decision to limit the defense to a maximum of three lawyers was appealed, and this objection was rejected by the court. Following the defense against the indictment, the prosecutor's office requested punishment from the upper line. An additional time was requested by the defense against the prosecutor’s opinion, and the request for release was rejected by the court, and one week was given for the defense.
In the second hearing held on December 29th, the court's dismissal was requested as all the requests were rejected without justification. In the defense on the merits, it was stated that the elements of the crime of propagating the force and violent methods of the terrorist organization did not occur and that Fincancı's statements as a forensic expert that the allegations regarding the use of chemical weapons should be investigated by independent bodies are in accordance with international law standards, thus could not be described as propaganda. It was also stated that Fincancı’s statements are protected within the scope of freedom of expression. The court dismissed the delegation's request for refusal and the request for release, and the hearing was adjourned to 11 January.
At the third hearing on January 11, the court sentenced Fincancı to a conviction for making propaganda for a terrorist organization and was sentenced to 2 years, 8 months ,and 15 days in prison. Following the conviction, it was decided to release Fincancı. The decision is subject to the divisional court of appeal and supreme court of appeal’s review.
In the second hearing held on 29 December, the court's dismissal was requested as all the requests were rejected without justification. In the defense on the merits, it was stated that the elements of the crime of propagating the force and violent methods of the terrorist organization did not occur and that Fincancı's statement as a forensic medicine expert that the allegations regarding the use of chemical weapons should be investigated by independent bodies in accordance with international law standards could not be described as propaganda, and it was protected within the scope of freedom of expression. The court dismissed the delegation's request for refusal and the request for release, and the hearing was adjourned to 11 January.
At the third hearing on January 11, the court sentenced Fincancı to a conviction for making propaganda for a terrorist organization and was sentenced to 2 years, 8 months, and 15 days in prison. Following the conviction, it was decided to release Fincancı. The decision is subject to appeal and appeal review.
Fincancı’s case, who is a forensic expert and the President of the Turkish Medical Association, is a clear indicator of Turkey's poor record of freedom of expression. This became crystal-clear when she was arrested and sentenced for her statements regarding the allegations of the use of chemical weapons should be investigated by independent bodies. It is also clear that the whole judicial process strengthens the concerns about the independence of the judiciary.
Central Bank’s Inflation Presentation and Ignoring the Reality
Şahap Kavcıoğlu, President of the Central Bank of the Republic of Turkey (CBRT), announced the inflation report, which includes medium-term inflation forecasts, on January 26th. Kavcıoğlu stated that “the midpoints of our inflation forecast range are 22.3 percent at the end of 2023, in line with our forecasts announced in the previous Report, it corresponds to the level of 8.8 percent at the end of 2024,”. Emphasizing the decreasing energy and commodity prices in his speech, Kavcıoğlu said that the energy costs, which have an important place in the balance of payments, increased by around 43 billion dollars in 2022 compared to 2021, but he predicts that energy prices will decrease in 2023. The most interesting aspect of Kavcıoğlu's presentation was his statement on the claim that Turkey would have a current account surplus in 2023.
It is known by all economic circles that Turkey has developed a monetary policy to increase exports under the name of the "Liraization Strategy" for a long time. In his presentation, Kavcıoğlu strongly emphasized the example of energy prices to explain how successful this strategy was. We observe that the Central Bank has left the price stability issue, which has been its main task for a long time and has developed policies that will form the basis of the government's populist policies. However, claiming that the economy will have a current account surplus by saying that energy costs will decrease shows that the institution is moving away from rationality at an unprecedented pace.
There are several problematic aspects to this discourse. First of all, the "Liraization" move has already been hampered by the artificial suppression of the US dollar. Due to the dollar, which has not appreciated at the rate of inflation in Turkey and has been kept constant for the last few months, Turkey has now lost its currency advantage in exports. Turkey's leading exporting sectors are knocking on Erdogan and his team almost every day to lower the value of the Turkish lira. Due to this situation, Turkey is faced with a growing current account deficit. Imports are increasing more than exports, and the current account deficit is growing day by day.
This undermines the “Liraization” strategy. The reversal of this reality was the basis of the Liraization strategy. In other words, the Turkish lira would become so depreciated, and Turkish goods would become so cheap that Turkish manufacturers would be able to sell more goods and services abroad. But even when the Turkish lira was extremely depreciated, the current account deficit continued to increase. Now, due to the increase in inflation, the prices of Turkish goods have increased. In this situation, it is quite irrational to hope that the price advantage arising only from energy imports will be beneficial when the dollar-TL exchange rate is in its current situation.
In addition, Kavcıoğlu gave another interesting information about energy: Domestic natural gas will come into operation in March, and thus the country’s energy imports will decrease even more. It goes to say without a doubt that this is a highly optimistic estimate. It is not yet clear how domestic natural gas will be distributed. Although it is said that the Filyos Port built on the Black Sea coast will be used for this end, it is not yet known whether its infrastructure is suitable for gas distribution.
The problematic aspects in the presentation are, indeed, not limited to the energy issue. The fact that food inflation forecasts were not revised upwards as a result of the drought deserves further discussion. However, Kavcıoğlu made a very different prediction and mentioned that the rains would start after February. I think we all have the right to find out which meteorologist got their opinion while making this forecast. On the other hand, there was a lot of talk about the fall in commodity prices. However, there was no mention of China leaving its "zero case" policy and setting its growth target of 5.5 percent for 2023. Even this situation will cause an increase in commodity prices.
Emphasizing that the framework of monetary policy is a cheap access to finance is a clear indication that the Central Bank is quite confused about its own main policy target. In addition, no mention was made of what measures the Central Bank would take against election economy activities such as tax amnesties, high-rate hikes, credit taps, and early retirement plans. It was even said that the election economy would not have much effect on inflation. In summary, the Central Bank has completely put price stability, which is its main task, into a corner and has undertaken the task of supporting the populist policies of the government. The CBRT stands before us as the biggest example of the institutional collapse and democratic decline in the country.
‘Censorship Law’ No. 7418 and ‘New NGO Law’ No. 7262
The year 2022 has witnessed increasing pressure on Turkish civil society which has reached alarming levels.
Although we have not yet begun to experience its consequences widely, the Amendment of the Press Law No. 7418 of 13.10.2022 and Some Laws, which is known as the "censorship law," stipulates that those who spread "false information" will be punished from 1 to 3 years, seems to put civil society in a more difficult situation after the 2023 elections. This Law, which we will talk about frequently this year, will be at the top of the civil society issues we will follow in the bulletins.
Although the government argues that Law No. 7418 was not prepared with political concerns and did not contain any censorship regulations, accompanied by Law No. 7262 on the Prevention of Financing the Proliferation of Weapons of Mass Destruction (the new "NGO Law"), it becomes easy to understand how much the civil society in Turkey is currently under intense pressure.
As a matter of fact, Law No. 7418 has exposed non-governmental organizations to the risk of being imprisoned for up to three years for allegedly disseminating "false information" due to the ideas expressed on their platforms and the data contained in the studies they publish. The Law No. 7262, on the other hand, with its vague definition of terrorism, uncertain sanctions, and controls, serves as a "Sword of Damocles" on non-governmental organizations. For this reason, non-governmental organizations have to continue their activities under the risk of being accused of supporting terrorism with the people and institutions they cooperate with, the reports they publish, or the grants they receive.These laws, which are clearly not "regulations that protect and develop rights and freedoms in related fields," can actually be described as initiatives that further erode the rule of law in Turkey. In the meantime, it should be noted that the Venice Commission also criticized the Law No. 7262 on the disproportionateness of the penal sanctions it envisaged as doubtful. Legislation processes that do not rely on impartial, concrete, and transparent data, do not take diversity and participation into account, as well as omnibus laws that cannot be discussed sufficiently have become ordinary legislative processes in the country. Suffice it to claim that his situation continues to cause irreparable wounds in liberal democracy, the rule of law, and social peace and reconciliation.