ON THE ILLEGALITY OF THE TERROR WANTED LIST PREPARED BY THE MINISTRY OF INTERIOR
Dr. Gökhan GÜNEŞ
The Ministry of Interior has updated the “list of wanted terrorists” this week within the scope of terrorism and published it on the Ministry’s website http://www.terorarananlar.pol.tr/tarananlar. It is seen that many journalists, especially Can Dündar, human rights activists, former judges and prosecutors, and lawyers, are on the list. The list includes a total of 971 people accused of being members of 19 different terrorist organizations. However, when we look at the names, the majority of the list is related to the Gülen Movement.
a) Evaluation within the scope of the Anti-Terror Law and the Related Regulation
The Ministry stated that these lists were prepared in accordance with Article 19 of the Anti-Terror Law, titled “Rewards”, in order to combat terrorism more effectively. According to the regulation in the law, provided that they did not participate in its committing those, who helped to uncover the crime within the scope of this law or to seize the evidence or to catch the perpetrators of the crime or to find their location or identities will be given a monetary reward. The determination of the amount of the award and the procedures and principles regarding the award are left to the Ministry of Interior[1].
Looking at the arrangement in this Law, it is seen that the article does not include an authorization that allows the Ministry to create a wanted list and to categorize some suspects or accused persons whose trials are still ongoing and for whom there is no final conviction yet.
On the other hand, the Ministry stated that the wanted list was prepared within the framework of the “Regulation on Rewards to be Given to Those Who Helped to Discover Terrorist Crimes or Seize Evidence or Catch Criminal Perpetrators”, which was enacted within the scope of the authority given to the Ministry after the Law amendment.
First of all, the concept of “terrorist criminal” in the Regulation should be examined. In order to consider one person as a terrorist criminal, it must be proven that he “committed a crime” or “is a member of an organization”. Of course, the authority that will decide on this is impartial and independent courts. However, there is no final court decision and there is not even a trial started against the majority of people who have been added to the list of wanted terrorists Therefore, sharing pictures with personal information of people who do not have a court decision by being accepted as terrorist criminals is a crime as well as a violation of the presumption of innocence and the right to respect for private life.
It is seen that an authority which is not given to the Ministry by the Law is used in the Regulation. Because, in the article of the Law, it is regulated that only the procedures and the principles regarding the determination of the award and the amount of the award will be determined by the Regulation. There is no provision in the text of the law that authorizes the administration to prepare a “wanted list” ex officio. At this point, it is already a universal rule of law that a person who has not yet had a final conviction will not be included in the concept of “terrorist criminals” in the Regulation.
Therefore, even if the provision of the Regulation is taken as a basis, it can only be applied to the wanted list for those who have a finalized conviction. However, there are many people on the list who do not have a finalized conviction. it is seen that the Ministry of Interior declared hundreds of people terrorist criminals with an administrative act. In this respect, the wanted list is clearly against the law. Moreover, the Regulation does not have the authority to prepare lists and create categories.
b) Implementation of the Fugitive Procedure on Non-Fugitive Persons
On the other hand, the procedures and principles to be applied regarding the suspects and defendants who cannot be reached or who are fugitives, although the trial is still ongoing, are stipulated in Articles 247 and the following of the Criminal Procedure Code No. 5271 (CPC). If the people on the wanted list are considered to be fugitives, first of all, the procedures in Articles 247 and the following of the CPC, which includes the provisions on the “Trial of Fugitives”, must be completed.
If there is no arrest warrant issued by these authorities, whose file is currently in the Cassation Court or Appeal Court, these persons cannot be treated as “fugitives”. The same situation is valid for the persons whose trial continues despite the fact that their statements were taken in the main court. However, a person who cannot be reached during the investigation and trial stages may be treated as a fugitive. In this regard, the mandatory procedures stipulated by the Law must be fulfilled.
In this context, it is seen that people are included in the wanted list as fugitives without completing the summoning and newspaper announcement procedures as a legal obligation. In an ongoing case, it is seen that the Ministry of Interior, which is the administrative authority, puts itself in the place of the judicial authorities and treats people as fugitives. This action is a violation of the right to a fair trial in this regard.
c) Violation of the Right to Fair Trial and Presumption of Innocence
At this point, it is seen that these lists have been prepared without any decision from the relevant judicial authority. The ECtHR has recently given a verdict of violation of rights about some academics, journalists and members of the judiciary included in the list. It was accepted by the ECtHR that they were declared terrorists with an unlawful trial. Despite this, this list prepared by the Ministry violated the presumption of innocence and the right to a fair trial. Likewise, sharing personal information openly and illegally on the internet is a violation of the right not to be tarnished, the right to respect for material and moral bodily integrity, the right to respect for private and family life, and the right to respect for human dignity.
d) Encouraging Turks Living Abroad to Act as Agents
With the Regulation in Article 6 of the “Announcement” of the regulation, it is seen that especially Turks abroad are encouraged to act as spies. The Ministry of Interior requests that the persons on the wanted list, which it has prepared in violation of domestic law and international procedures, be reported to the competent authorities in Turkey. This unlawful incentive may cause Turkish citizens to be prosecuted for spying in their country of residence. Likewise, it is clear that if such actions are detected, it will result in the removal of citizenship or deportation of those concerned.
e) Violation of INTERPOL Procedure and Seeking Unlawful Alternatives
As it is known, INTERPOL has stopped publishing bulletins from Turkey since the coup attempt in July 2016. Because Turkey abused procedures of INTERPOL and therefore violate the Interpol Constitution. In this context, INTERPOL, which is of the opinion that these requests do not comply with its founding principles, officially announced to Euronews that it rejected the previous red notice request from Turkey regarding Can Dündar[2]. On 3 June 2021, while reporting to the Turkish Parliament on the preparations of the 89th Interpol General Assembly by Turkish bureacurats, it was stated that the Interpol General Secretariat rejected 773 requests for the detention of its members perceived by the Gülen Movement.
Therefore, Turkey is not able to issue a red notice because it is on the red list by INTERPOL. In order to suppress and persecute dissidents and activists abroad, Turkey has issued a “Wanted List”, this time in violation of the Anti-Terror Law and the relevant Regulation. Thus, it aims to reach its goal by encouraging citizens abroad to act as spies.
Here is an example of a state that sets a trap for its own people.
[1] https://www.icisleri.gov.tr/bakanligimiz-tarafindan-teror-kapsaminda-arananlar-listesi-guncellendi İET: 02/01/2023
[2] https://www.dw.com/tr/yorum-interpol-t%C3%BCrkiyeye-insan-haklar%C4%B1n%C4%B1-hat%C4%B1rlatt%C4%B1/a-57851287
