The Latest Victim of Enemy Criminal Law: Ayşenur Arslan

When criminal law is instrumentalized and a repressive understanding of criminal law becomes dominant, it becomes easier to target opposition groups in society. Contrary to popular belief, the politicization of the judiciary does not only occur in totalitarian regimes. The existence of repressive criminal law, or in other words, enemy criminal law practices, is also observed in non-totalitarian regimes.

Last week, I discussed the sentence given to the esteemed journalist and author Merdan Yanardağ, one of the latest victims of enemy criminal law, which focuses on the perpetrator rather than the act, and shared it with you, our valued readers. This week, I would like to convey to you the detention process of journalist Ayşenur Arslan, the new victim of enemy criminal law.

On the day the new legislative session of the Turkish Grand National Assembly was to open in Ankara, a bomb attack was carried out in front of the entrance gate of the General Directorate of Security of the Ministry of Interior. One of the two attackers detonated the explosives on their person, while the other was neutralized by security forces. Two police officers were injured in the attack. We wish them a speedy recovery.

Ayşenur Arslan, against whom an investigation was launched due to her remarks regarding this bomb attack, was taken into custody and released after her statement to the prosecutor's office. The Radio and Television Supreme Council (RTÜK) had also initiated an investigation into Ayşenur Arslan due to her remarks about the attack in Ankara.

Arslan had made some comments regarding the attack in Ankara during her program on Halk TV.

The Istanbul Chief Public Prosecutor's Office announced the investigation into Ayşenur Arslan with the following statement:

“An investigation has been initiated for the crimes of “making propaganda for a terrorist organization” and “praising a crime and a criminal” regarding the remarks made by Ayşenur Arslan on a program broadcast on the channel named Halk TV on October 2, concerning the attack carried out by the separatist terrorist organization PKK in front of the General Directorate of Security on October 1.”

Halk TV Chairman of the Board Cafer Mahiroğlu also announced that they had decided to end Ayşenur Arslan's program, Medya Mahallesi. Cafer Mahiroğlu described Arslan's statements as "unfortunate words."

Mahiroğlu said, "Even though terrorism was condemned in the same program, it exceeds the boundaries of the stance and perspective of Halk TV that we mentioned at the very beginning. For this reason, we announce to the public with our regrets that we have decided to terminate the program."

Regarding the investigation and the removal of her program from the air, Ayşenur Arslan had said, “I am sorry for being misunderstood. I think it is a great injustice for my name to be associated with terrorism and terrorists, and I am very sad for this reason. All I did was repeat the question marks that are on the agenda regarding the terrorist act.”

The esteemed journalist and author Ayşenur Arslan made statements regarding the questions that arose about the bomb attack within the framework of freedom of thought and expression, as required by her profession. Arslan, who argued that it was impossible for her to use expressions that legitimize terrorism, did not accept the accusations leveled against her.

Leaving the courthouse after her statement to the prosecutor, Arslan said in a statement to journalists, "As journalists, we ask our questions, and sometimes we may have to explain why those questions are asked. I think I have explained it."

Article 26 of our Constitution guarantees the freedom of thought and the freedom to disseminate thoughts. Article 19 of the United Nations International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights regulate the right to freedom of expression; that is, the right of individuals to seek, receive, and impart all kinds of information and opinions.

When the laws and principles are taken into consideration, it is obvious that the investigation conducted against Ayşenur Arslan is a suppression activity that contradicts the freedom of thought and expression.

The crimes of “making propaganda for a terrorist organization” and “praising a crime and a criminal” in criminal law are problematic types of crimes in terms of predictability. In this respect, they act as a joker in political trial processes. Such types of crimes are easily activated if a person cannot be arrested for the crime for which they were detained.

For this reason, it is a threat to legal security. Whether a person can be detained is related to both the nature of the crime and the state of the evidence. Detention, which is not necessary for the investigation, constitutes a violation of the right to liberty. The essential principle in criminal proceedings is “taking a statement by summons – by invitation.” If there is no concrete evidence, a detention decision cannot be made.

Detention is a protective measure by its legal nature. In criminal law, protective measures can be resorted to during the investigation phase. However, these protective measures must be applied in a measured and proportionate manner.

Ayşenur Arslan is a journalist. She broadcasts on television every week. There is no suspicion of flight. Since the evidence of the crime is a television recording, there is no suspicion of tampering with evidence either. Therefore, it must be stated that the detention decision was not measured and proportionate. Such unlawful detention decisions serve as a form of intimidation due to the injustice they ultimately create. In this sense, depriving Ayşenur Arslan of her freedom of movement is nothing more than the traces of enemy criminal law in our country.

Such violations also cause a great lack of trust in the Turkish judiciary in the international arena. For example, according to the latest statistics, Turkey has fallen to 36th place among 38 OECD countries in the ranking of trust in the judiciary. While only 15% of citizens think that the judiciary is independent, the rate of those who trust the judiciary has dropped to 18%.

The Turkish judiciary and the judges, prosecutors, lawyers, and judicial personnel who work with great effort are severely harmed by these statistics. The judiciary in Turkey must now reach a level where it implements the same fair practices for everyone within a framework that is predictable and does not create controversy with its decisions.