Landmark ruling by Romanian appeals court confirms problems in the rule of law in Turkey

Nordic Monitor

In a well-articulated ruling, a Romanian appeals court has not only denied the extradition of a Turkish journalist on dubious terrorism charges brought by the government of President Recep Tayyip Erdoğan but also found the Turkish government’s claims against the Gülen movement to be baseless.

According to a trove of official documents that were exchanged through the Turkish Embassy between the Erdoğan government and Romanian authorities, copies of which were obtained by Nordic Monitor, the Constanta Court of Appeals came to the conclusion that none of the charges leveled against Turkish journalist Kamil Demirkaya were credible and that the purported evidence against him and the Gülen movement, to which he was accused of being linked, was not convincing.

The ruling lays bare how the attempt by the Erdoğan government to harass and intimidate exiled journalists and critics by abusing international extradition mechanisms has totally failed when the allegations contravene the rule of law and due process. The case file that included the diplomatic correspondence between Turkey and Romania also reveals how Turkey, a member of the Council of Europe, blatantly abuses extradition mechanisms regulated by the European Convention on Extradition (ECE).

In 2018 the Erdoğan government asked Romania to extradite journalist Demirkaya, 58, who was working for the Zaman daily’s Romania edition in Bucharest after he served as editor-in-chief of Zaman Bulgaria between 2003 and 2011. The Zaman newspaper, the most highly circulated daily in Turkey with 1.2 million copies sold daily at its peak, was seized by the Erdoğan government on trumped-up charges of terrorism in March 2016. The paper was turned into a government mouthpiece overnight and was eventually shut down in July 2016. Many Zaman editors and reporters were jailed or forced to live in exile to escape wrongful imprisonment.

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The charges, transmitted in a note verbale by the Turkish Embassy in Bucharest on April 10, 2018, alleged that Demirkaya had links to the Gülen movement, a civic group known for its investment in science education and the promotion of interfaith and intercultural dialogue around the world. The movement is led by Turkish Muslim scholar Fethullah Gülen, a US resident and an outspoken critic of the Turkish president for pervasive corruption in the government and Erdogan’s support for armed jihadist groups in Syria.

Erdogan accuses the movement of being behind corruption investigations in 2013 and a coup attempt in July 2016, allegations the movement denies.

The diplomatic communiqué includes legal papers filed by Erkan Gözkaya, a public prosecutor in Antalya, for Demirkaya’s extradition on December 27, 2017. As seen in all the politically motivated criminal cases the Erdoğan government uses to persecute Gülen movement volunteers, Demirkaya’s account at Bank Asya as well as accounts owned by his wife and three children during the 2013-2016 period were presented as evidence to warrant his extradition. The collective punishment of family members of critical journalists has been part of the campaign of intimidation pursued by the Erdoğan government. The extradition request only listed the bank account balances of the journalist and his family members but failed to specify which transaction constituted a crime, for what purpose and for what terrorist activity.

Bank Asya, founded in the 1990s by investors close to the Gülen movement, was a well-capitalized and popular private lender that was seized by the government in 2015 on fabricated charges. It was operating under the relevant laws and regulations until it was seized, and it had been given clean bill of health every year since it launched operations in 1996. The government considers any person who had an account at the bank to be a potential terrorist, which means millions of people who had a relationship with the duly authorized and licensed  bank have been targeted as part of a witch hunt.

In line with the Erdoğan government’s official rhetoric, Gözkaya considered the dates of December 17 and 25, 2013 to be milestones and the starting point for his investigation despite the fact it violated a fundamental principle of law as detailed in Article of 7 of the European Convention on Human Rights, which provides protection against arbitrary prosecution.

On December 17 and 25, 2013, Turkish police launched sweeping corruption operations under the order of investigating prosecutors who charged leading figures in the inner circle of then-Prime Minister Erdogan and members of his cabinet as well as his family members with bribery, abuse of power and other criminal acts. However, Erdoğan dismissed the allegations, sacked the prosecutors and police chiefs and hushed up the graft probes. He also described the investigations as “a plot by the [Gülen] movement to topple the government” and launched a crackdown on the group.

Similar evidence was used against Turkish officials by US federal prosecutors in New York, and the deputy manager of state lender Halkbank was convicted on multiple counts including violating US sanctions on Iran. During the trial the lead suspect-turned-government witness, Reza Zarrab, implicated President Erdoğan as the person who authorized the illegal schemes to circumvent sanctions. Zarrab was the main suspect in Turkish corruption cases in 2013 but was freed after the intervention of the Erdoğan government.

In the extradition file against the Turkish journalist in Bucharest, the Erdoğan government also claimed that the ByLock messaging application, which was downloaded more than 600,000 times from the Google Play Store and the App Store worldwide, to be the second purported evidence of terrorism. But the documents lacked any content from the ByLock messaging system, and it was claimed that merely downloading the encrypted communication software amounted to criminal evidence in and of itself, which goes against the principle of the rule of law.

The United Nations criticized the Erdoğan government for trying to criminalize secure messaging applications. The ByLock case also exposes how criminal investigations, prosecutions and trials were conducted in Turkey. On the one hand, Turkish courts have charged 123,114 Turks under the anti-terrorism law for merely downloading ByLock. On the other hand, the Turkish government admitted that thousands of people may have been unwittingly redirected to the messaging application.

In the end prosecutor Gozkaya cited customary international law and the principle of reciprocity as the basis of the extradition request and claimed the charges against Demirkaya have no political, military or economic basis when it was clear that the charges were politically motivated in order to silence the journalist.

The Constanta Court of Appeals decided on December 14, 2018 that “the conditions for the extradition of Turkish national Kamil Demirkaya have not been met” and dismissed the request lodged by Turkish judicial authorities on the grounds of ECE rules and relevant Romanian laws and regulations.

The ECE provides for the extradition between parties of persons wanted for criminal proceedings or for the execution of a sentence. According to the treaty, the alleged crime must be punishable under the laws of both countries. The convention does not apply to political or military offenses, and any party may refuse to extradite its own citizens to a foreign country. Turkey and Romania are among the 33 contracting countries.

The court stated that Demirkaya had no connection whatsoever to any terrorist activity and that the reasons submitted by Turkey for his extradition did not suffice to lead to the conclusion that Demirkaya had committed any criminal offense. The court also underlined the fact that human rights were violated in Turkey and that all sympathizers or people believed to be affiliated with the Gülen movement were unjustly detained and tortured.

According to the Romanian court, the Gülen movement has never committed any act of terrorism, and the extradition of Demirkaya was being requested by Turkey in order to prosecute or punish a person for reasons of race, religion, political or ideological opinion or membership of a certain social group. The court also found that Turkish authorities suspended the application of the European Convention on Human Rights during a state of emergency declared after the attempted coup and that these oppressive measures were still continuing after its termination.

Moreover, the court indicated that thousands of people were arbitrarily and unlawfully taken into custody in Turkey for having downloaded the ByLock application. With reference to human rights institutions, the court referred to reports that highlighted the torture perpetrated on members, supporters or persons who had even the slightest connection to the movement.

Interestingly, appeals court looked at Turkey-Interpol relations with reference to a letter from the Romanian police. According to the letter, Demirkaya was not declared a wanted person at the international level through formal Interpol channels. The Romanian police also underlined that Interpol prohibited the use of Interpol’s communications channels to interact on any issue that concerned the coup attempt.

“From the letter issued by the General Inspectorate of the Romanian Police, the Center for International Police Cooperation and the National Interpol Office, it followed that the Turkish citizen was not declared a wanted person at the international level through official INTERPOL channels because the General Secretariat of the International Criminal Police Organization — INTERPOL — prohibited the use of Interpol’s communications channels to interact on any issue that concerned the 2016 coup d’etat in Turkey because this contravened the provisions of Article 3 of the constitution of this institution, which reads, ‘It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character’,” the decision stated.

As indicated by many observers, the Justice and Development Party (AKP) government’s hounding of its critics and opponents has dismantled Turkey’s rule of law framework and turned the justice system on its head. Journalist Demirkaya is one of the latest victims who have suffered, albeit temporarily, from the long arm of the repressive regime of President Erdogan.

Prolonged and arbitrary jailing of critics on bogus terrorism charges has become the norm in Turkey. Most countries do not respond positively to Turkey’s extradition demands for those who were forced to leave their homeland because of the ongoing witch hunt. For instance, the Erdoğan government has been requesting the extradition of 81 people from Germany since 2016 and is frustrated by Berlin’s unwillingness to act on Turkey’s politically motivated charges.

Similarly, a British high court decided in April 2019 that an international extradition case against Akın İpek, a prominent businessman whose dozens of companies — including two national newspapers, two TV networks and one radio station — have been confiscated by Turkish officials, was politically motivated. Turkey has most recently been seeking the extradition of British barrister Ozcan Keles, who is of Turkish descent and holds UK citizenship, on terrorism charges over his Twitter activity.