Court: İstanbul 24th Heavy Penal Court
Date: September 23 to 27, 2024
Introduction
This report provides a comprehensive analysis of the ongoing trial publicly referred to as the “KızÇocukları Davası” or the “Case of The Minor Girls”(the Case), the first hearing of which Professor Antonio Stango, President of the Italian Federation for Human Rights has attended as an observer for our organisation which was heard at the İstanbul 24th Heavy Penal Court (Docket No: 2024-189) between 23rd and 27th of September this year.
The case involves 41 defendants—4 men and 37 women—24 of whom were held in pretrial detention at the time of the hearing. The defendants face charges under Article 314-2 of the Turkish Penal Code for alleged membership in an armed terrorist organisation, which carries potential sentences of five to fifteen years imprisonment.
This interim monitoring report examines the trial both from a procedural and substantive point of view, as well as the rights of the defendants—particularly minors—and the broader implications for the rule of law and judicial independence in Türkiye.
Background
Since the failed coup attempt on July 15, 2016, Türkiye has experienced profound changes in its judicial and prosecutorial practices. The government, led by Recep Tayyip Erdoğan both during his premiership and subsequent presidency, has suppressed dissent and persecuted judges, prosecutors, academics, journalists, lawyers, and individuals which it perceived to be linked to the Gülen movement (GM). Such an environment has given way to a judicial system which increasingly seemed to operate under undue political imperatives, as demonstrated in the “Case of The Minor Girls”.
Unchecked Prosecutorial Discretion and Bias
A major factor contributing to the deficiencies in trials such as the Case is the overreaching and often unchecked discretion currently enjoyed by Turkish prosecutors. A 2023 report by the Italian Federation for Human Rights (hereafter: 2023 FIDU report)shows how, after 2016, unrestrained prosecutorial freedom has been marred by ideological and political motives. Such a discretion allows the rife abuse of anti-terror laws in order to criminalise peaceful acts in violation of both the Turkish procedural law and international standards governing the same.
Prosecutors have shown a consistent pattern of producing indictments that lack logical connections between evidence and the charges filed. The 2023FIDU report which examined 118 different indictments has revealed that they have often failed to establish reasonable suspicion, relying instead on vague associations and speculative claims. This pattern is also quite visible in this Case, where accusations are based on mundane lawful activities such as tutoring, socialising and communicating through popular messaging apps.
Flaws in the Indictment and Procedural Irregularities
The indictment in the Case has drawn serious criticism for its incoherent structure and lack of substantiated evidence. According to the defense and expert observers, it is more of a cobbled-up police report rather than the outcome of a thorough investigative work. The indictment’s reliance on 13 police memos and intelligence notes without corroborating evidence violates Article 170 of the Turkish Code of Criminal Procedure (CMK), which orders all prosecutors to present clear factual explanations for charges and gather both incriminating and exculpatory evidence (CMK 160/2)—a requirement disregarded in this trial.
Reports such as the 2023 FIDU report on prosecutorial practices in Türkiye revealed that such flaws are systemic. Indictments frequently include politically charged language, conspiracy theories and narratives copied from other indictments. This strategy obfuscates the judicial process turning legal documents into useful tools which may be abused for political purposes.
Criminalisation of Digital Communication
The indictment relies heavily on use of popular digital communication platforms like WhatsApp and Telegram as evidence of clandestine criminal activity. Such criminalising of very basic digital communication is a violation of freedom of expression and right to privacy protected under Article 19 of the ICCPR and has been duly criticised by both the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UN HRC).
The indictment mentions digital communication between defendants more than 70 times implying that using such apps are actually being engaged in clandestine activity. It fails, however, to include any content or context to substantiate such a claim at the expense of the credibility of the prosecution’s case.
Witness Testimonies and Treatment of Minors
One of the most alarming aspects of the trial is the treatment of minor witnesses. Reports indicate that minors aged 13 to 17 were apprehended during dawn raids and held without access to legal representation or even their parents. They were coerced into implicating their peers, a practice that violates both domestic and international law, including the UN Convention on the Rights of the Child (CRC), to which Türkiye is a signatory.
A 16-year-old witness, whose statement had been previously obtained by the prosecutor in charge of investigation, explained before the Court that she was coerced to sign that testimony incriminating other defendants. She said that it was written down differently from what she said. The minor also noted that their lawyer was absent during critical parts of the interview. This account highlights severe procedural violations and undue pressure to extract false testimony. Same witness also said that she was forced to sign the transcript of the interview without her first reading it. Most alarmingly, she added herlawyer asked her to accept whatever prosecutor asked of her and both her lawyer and the prosecutor threatened her with being taken away from her parents and sent to an orphanage if she did not comply.
Challenges Faced by Defense Attorneys
Defense attorneys in the Case faced significant obstacles, including inadequate trial conditions which made it very difficult for them to present an effective defense. The courtroom allocated for a trial which clearly was getting a lot of public attention was unreasonably small and overcrowded to the extent that hindered the defense’s work. One lawyer described the appalling conditions in the courtroom as follows: “We were so limited in space that I couldn’t even take the indictment with me.” She added that the lawyers had to take turns using a very small desk in the courtroom.
The conduct of the bench also raised concerns. The presiding judge’s questions implied guilt, contrary to the universal principle of presumption of innocence. For instance, during cross-examination of the defendants, the judge directed intimidating questions to them. His questions were also in a form as if the prosecution’s allegations were established facts. Such worded questions when they come from the judge himself raise legitimate doubts as to the fairness and the impartiality of a court.
Decision to prolong pretrial detention of eight defendants
At the end of the 5-days hearing the Court ordered the extension of pretrial detention of eight defendants while releasing others. However, the order in question lacked any meaningful and individualised reasoning. Grounds for the extension of the pretrial detention of eight defendants were “stereotyped and abstract” and cited “without any attempt to show how they applied concretely to the specific circumstances of the case”.
Use of stereotyped language for detention or its extension have constantly been condemned by the ECtHR. In Ali Hıdır Polat v. Türkiye and Dereci v Türkiye,, the ECtHR observed that the Turkish courts’ justifications – both for ordering continued detention and rejecting the applicants’ request for release pending trial – used stereotyped language such as the “nature of the crime charged”, “the state of the evidence” or “the content of the case file”, and found it breached the Convention. In Selahattin Demirtaş v Türkiye (No. 2), the Court declared that such reasons are a “formulaic enumeration of the grounds of general scope [… and that] decisions worded in formulaic terms […] can on no account be regarded as sufficient to justify a person’s initial and continued pre-trial detention”.
Broader Context of Judicial and Prosecutorial Conduct
The “Case of The Minor Girls” is symptomatic of broader issues within the Turkish judiciary, particularly post-coup. It contains all of the numerous problems identified in the 2023 FIDU report as follows:
a) Turkish prosecutors frequently fail to observe Article 170/5 of the CMK, which requires them to include evidence favourable to the defense. This omission is a clear sign of lack of impartiality on their part,
b) Turkish prosecutors often craft indictments that appear biased, ideological and disconnected from reasonable standards of evidence,
c) Turkish prosecutors have also been known to utilise police and intelligence reports as definitive evidence without independent verification. This approach raises significant concerns as to the fairness of trials as it suggests a rubber-stamping of government narratives without due investigation.
Impact on Fundamental Rights and Freedoms
The implications for fundamental rights and freedoms are severe. The Case is an unfortunate example as to how anti-terrorism laws are used to curtail freedoms of expression, association, and the right to privacy. The ECtHR has criticised Türkiye’s application of Article 314, pointing out that convictions often rely on weak or indirect evidence.
The individual implications of such unlawful judicial practices are particularly visible in the treatment of minors. The coercive interrogation of children violates international standards and tarnishes the integrity of the judicial process. The ECtHR, the UN HRC, and other human rights bodies have found similar violations in numerous cases, reinforcing concerns that these practices are systemic.
World Justice Project’s 2024 Rule of Law Index
The 2024 Rule of Law Index by the World Justice Project reflects Türkiye’s challenges. Out of 142 countries, Turkey ranks:
● 128th for impartiality of the criminal system
● 138th for a criminal system free from improper government influence
● 133rd on fundamental rights
● 135th in limitations on government power
These rankings underscore the urgent need for reform in Türkiye’s judicial system to align with international human rights standards.
Conclusion
The “Case of The Minor Girls” is yet another embodiment of the critical failings in Türkiye’s judicial system, ranging from bias on the part of prosecutors to procedural violations which undermine the right to a fair trial. The testimonies coerced out of minors and the reliance on weak evidence indicate a system compromised by political influence. International scrutiny and advocacy are essential to maintain the independence of the Turkish judicial system and ensure the protection of fundamental rights and freedoms.
Recommendations:
1. Ongoing Oversight and Reporting: Human rights organizations should continue observing the “Case of The Minor Girls” proceedings, ensuring thorough documentation of any human rights breaches for holding judicial and law enforcement bodies accountable.
2. Diplomatic Engagement: The European Union, the Council of Europe, and countries maintaining close diplomatic relations with Türkiye should apply pressure to promote compliance with international obligations.
3. COE Commissioner and UN Special Rapporteurs Involvement: The Council of Europe’s Commissioner for Human Rights, along with UN Special Rapporteurs on counter-terrorism and human rights, freedom of peaceful assembly, freedom of religion and belief, and freedom of expression, should actively monitor the case to ensure adherence to human rights standards.
4. Ensuring Judicial independence and Impartiality: Structural reforms must be implemented to protect the neutrality of the judiciary, safeguarding both judges and prosecutors from external pressures.
5. Upholding Minors’ Rights: Türkiye must commit to following international protocols that defend the rights of minors in legal contexts.
6. Improvement of Trial Conditions: Improvements should be made to provide sufficient facilities for the defense, ensuring the right to a fair trial is upheld.
7. Reforming Anti-Terrorism Legislation: Article 314 should be revised to align with global standards and prevent potential misuse.
8. Compliance with ECtHR Decisions: Türkiye must implement ECtHR judgments and adapt its national laws accordingly.
Date of Publication: 14 November 2024
