Dual Criminality and Turkey's Red Notice request for teacher who criticised government on Twitter
Photo: Ibrahim Guetar
Turkey's Ministry of Justice has reportedly requested an Interpol Red Notice for the extradition of a school teacher who is wanted to serve a prison sentence in Turkey following conviction for a social media post.
According to a memo leaked to the Kronos news outlet last week the individual in question, identified as 'H.İ.B.', is believed to be located in the Netherlands. Convicted of inciting hatred and enmity among the public through a social media post published on Twitter, H.İ.B. was sentenced to a six-year prison term in absentia.
The tweet concerned a group of police officers who were dismissed and imprisoned after conducting a corruption probe in 2013 against high-ranking government officials. Reports suggest that H.İ.B. is accused of being affiliated with the Gülen movement. Such alleged affiliation is a recurrant political theme in Turkey’s ongoing misuse of Interpol’s databases.
There are several problems with Turkey’s request for an Interpol Red Notice. Firstly, Interpol is under a duty to comply with the Universal Declaration on Human Rights and must therefore refuse to issue a Red Notice where the underlying conduct of the alleged offence is a protected human right enshrined by the Declaration.
Secondly, the principle of dual criminality, sometimes referred to as double criminality, is a fundamental principle of international extradition law whereby the offence for which a requested person is wanted must qualify as an offence under domestic law from where extradition is being sought. As set out below, an arrest warrant in the case of H.İ.B. is unlikely to comply with the dual criminality test in the Netherlands.
Thirdly, given that Turkish authorities know where H.İ.B. is then Interpol is obliged to refuse to issue a Red Notice because the sole purpose of that database is to help police forces to locate fugitives.
Lastly, Interpol is prohibited from issuing a Red Notices against an individual who has humanitarian protection from the country where that person fears persecution.
These protective factors should prevent Interpol from agreeing to issue any Red Notice request from Turkey from the outset. Beyond that, the Netherlands may refuse to act on a Turkish arrest warrant or extradition request under the principle of dual criminality where the offending act is not recognised under domestic law.
With these protective factors in mind, let’s take a closer look at what we know so far about H.İ.B.'s case. Starting with the alleged offence, Article 216(1) of the Turkish Penal Code pertains that:
(1) A person who publicly provokes hatred or hostility in one section of the public against another section which has a different characteristic based on social class, race, religion, sect or regional difference, which creates a explicit and imminent danger to public security shall be sentenced to a penalty of imprisonment for a term of one to three years.
The European Commission for Democracy through Law, otherwise known as the Venice Commission, conducted an analysis in 2016 of the conformity with European human rights standards of, among others, Article 216 of the Turkish Penal Code. It found that:
“In these cases, the [European Court of Human Rights] found violations of Article 10 on account of the convictions of the applicants for having published articles or books that allegedly incited to hatred or hostility or praised a crime or a criminal. The Court stated that although such articles and books contained harsh criticism of public policies (especially of the measures taken within the fight against terrorism), they either did not incite to hatred and violence, or the sanction applied was clearly disproportionate to the legitimate aim pursued by the interference.”
In the same report, the Venice Commission also analysed the conformity of Article 299 of the Turkish Penal Code, which pertains that:
(1) Any person who insults the President of the Republic shall be sentenced to a penalty of imprisonment for a term of one to four years.
(2) Where the offence is committed in public, the sentence to be imposed shall be increased by one sixth.
(3) The initiation of a prosecution for such offence shall be subject to the permission of the Minister of Justice.
Regarding Article 299, the Venice Commission found that:
“according to the emerging European consensus and international standards, States should either decriminalise defamation of the Head of State or at least limit this offence to the most serious forms of verbal attacks against them while at the same time restricting the range of sanctions to those not involving imprisonment. The Commission notes that, by contrast, the practice in Turkey indicates an increased use of this provision, including in cases of statements that are protected under Article 10 ECHR. The sanctions imposed, including imprisonment, also are clearly excessive."
Needless to say, there are no equivalent offences of harsh criticism of public policies or insulting a head of state in the UK nor in most other democratic states such as the Netherlands.
More importantly for Interpol, any Red Notice based on an arrest warrant for these Turkish offences would be in violation of an individual’s human rights, and therefore in violation of Interpol's constitution.
Article 10 of the European Convention of Human Rights protects an individual's right to hold their own opinions and to express them freely without government interference. This includes the right to express views aloud through:
published articles, books or leaflets
television or radio broadcasting
works of art
the internet and social media
Under Interpol’s constitution the police organisation must not issue any Red Notice that is in breach of the Universal Declaration on Human Rights, which largely mirrors the ECHR.
In the event that an abusive Red Notice does slip through Interpol’s net, it is down to individual States to uphold the principle of dual-criminality and refuse to act on non-compliant arrest warrants. As Red Notice Monitor has highlighted previously, not all State agents do.
For the most part, international legal principles at the heart of extradition treaties are robust and protect individuals from wrongful extradition. However, the editors of Red Notice Monitor are regularly instructed by individuals facing trumped up and fabricated charges from despotic regimes hoping to avoid detection under the principle of dual criminality.
A cursory look into the Turkish offences shows that charges of provoking hatred and insulting a head of State are misused by the Government of Turkey to target critics. The Stockholm Center for Freedom reported in 2022 that 44,675 individuals have been investigated for insulting the President of Turkey since 2014. In 2019, over 3,800 people in Turkey received prison sentences for insulting the President of Turkey.
If reports are accurate and Turkey has recently requested an Interpol Red Notice against H.İ.B for these offences, it would appear that the Council of Europe’s concerns from 2016 remain relevant and Interpol would be wise to screen all Turkish requests before issuing notices. Turkey misuses Interpol to circumvent the formal extradition process and to evade Interpol’s controls of Notices and Diffusions to persecute dissidents.
One well known example of Turkey's campaign is that of Enes Kanter Freedom, the NBA basketball star who criticised Erdoğan and was subsequently stopped at border control on a business trip in 2017 after the Turkish authorities improperly reported his passport stolen with Interpol and issued a Red Notice against him. Red Notice Monitor interviewed Enes Kanter Freedom, who told Red Notice lawyer, Ben Keith that:
"In Turkey, if you are in the country and you criticise the President, if you say anything against the Erdoğan Government, anything against the regime, you will be in prison the next day. But if you are outside of Turkey, if you are a journalist, or you are an activist, and you are criticising the president or you say something against the government, what they do is so disgusting, they will put you on an Interpol list, and whatever country you are in around the world, that country has to deport you back to Turkey if they have an extradition, or some kind of deal with Turkey. So, in one week they put 65,000 people's names on the Interpol list and told them that they were terrorists.”
You can watch the interview in full, here.