Gülen's defense against Erdoğan's onslaught

Abdullah Bozkurt

In April 2011, I asked the main opposition leader Kemal Kılıçdaroğlu about what he thought of the slanderous remarks uttered by his deputy İsa Gök. Gök had targeted Islamic scholar Fethullah Gülen while at the speaker's podium in Parliament. Without hesitation, Kılıçdaroğlu criticized Gök's remarks, saying Parliament is a platform to criticize the actions of the government. “Targeting non-political people in Parliament is wrong and unacceptable,” he said, asking his deputies to refrain from criticizing people without any solid evidence. Let's contrast that with Prime Minister Recep Tayyip Erdoğan's unrelenting attacks against Gülen since the corruption investigation of Dec. 17, 2013, which implicated himself, his family, his ministers and businessmen close to his government.

In an effort to find a scapegoat for the colossal wrongdoings in government -- including graft, money laundering, re-zoning land and influence peddling allegedly committed, according to the opposition, with the full knowledge and consent of Erdoğan -- the Turkish prime minister has staged an unprecedented onslaught against Gülen with all kinds of name calling. He has accused Gülen of plotting a coup against his government without offering a single shred of evidence. Gülen, who inspired a worldwide, faith-based civic movement called Hizmet (service), is not a political figure. He has expressed time and again that he is not interested in entering politics, especially at his advanced age. Yet the politician that is Erdoğan keeps insulting a man who has tried to remain apolitical his entire life, a man who has not shied away from taking strong positions on democratic principles and respect for the rule of law and fundamental rights. Now, he is being forced by Erdoğan to defend himself and the Hizmet movement he has inspired.

I think the president of the US-based Freedom House, David J. Kramer, hit the nail on the head when he described the increased harshness of Erdoğan's verbal assault on Gülen as part of a pattern long pursued by the ruling Justice and Development Party (AKP) government in discrediting opponents. “The current rhetorical attack on TÜSİAD [the Turkish Industrialists and Businessmen's Association], local and international media and the Gülen movement are part of a pattern of demonization and intimidation of opponents that has been going on for years,” Kramer told Today's Zaman in an interview on the eve of the release of a damning report about freedom of press woes in Turkey. “What is new is that the attacks have gotten harsher and that the Gülen movement is now also a target,” he added. Erdoğan repeated his line of offense on Sunday at a public rally as well, lumping TÜSİAD, the opposition parties, the media and Gülen all together in the same basket as traitors and domestic collaborators for global power circles.

Gülen does not have a political platform from which to defend himself, nor does he have a seat in Parliament. He chose to respond to Erdoğan's slanderous accusations the same way he has been fighting similar claims in the past: in the courtroom, where his lawyers launched civil slander cases and defamation proceedings to protect Gülen's reputation and honor as part of his right to a private life. Earlier this month, Gülen filed a defamation suit against the prime minister for remarks Erdoğan made about him in recent speeches, which Gülen's lawyer says is full of derogatory and inappropriate comments. Gülen's lawyer, Nurullah Albayrak, said Erdoğan crossed the line in terms of freedom of expression and that the prime minister excessively and harshly insulted the Islamic scholar. Gülen is demanding TL 100,000 in damages for the denigrating remarks.

Gülen's legal challenges will most likely succeed in Turkish courts as he has successfully won many cases in the past. He has never had to go to the Strasbourg-based rights court, the European Court of Human Rights (ECtHR), because even a criminal case against him launched by the military-backed judiciary failed to produce a conviction in Turkish courts. He has been cleared of all charges leveled against him, and the appeals court upheld the lower court's judgment.

However, in the likelihood he has to go the ECtHR, he has a very good chance of winning as well. In so many cases, the ECtHR has opted for protection of someone's reputation against freedom of expression. For example, in a 2009 judgment that the ECtHR delivered in the case of A. v. Norway, the court voted for the right of the applicant to have his honor, reputation and privacy protected under Article 8 of the European Convention on Human Rights (ECHR) against safeguarding the freedom of expression, which is protected under Article 10. In order for Article 8 to come into play, "the attack on personal honor and reputation must attain a certain level of gravity and be in a manner causing prejudice to personal enjoyment of the right to respect for private life." Erdoğan's slanderous remarks against Gülen, made without openly naming him, include referring to him as a "traitor," "hollow preacher," "virus," "false prophet," "hashashin" -- a member of a medieval order that spread political influence through assassinations -- and others. I suppose these qualify as being grave.

Gülen and Erdoğan are not on an equal footing to face off on defamation charges. According to ECtHR case law, the status of the person against whom remarks have been made is also an important factor in deciding whether criticism amounts to freedom of expression or defamation. The court upholds the general principle that the limits of acceptable criticisms are wider in regards to a politician acting as a public personality compared to a private individual because the former “inevitably and knowingly lays himself or herself open to close scrutiny of his or her every word and deed, in particular by a political adversary,” according to the court's case law. The court also tends to favor claims on the right to privacy when there is no factual basis to support the other side. In this case, Erdoğan has not presented a single piece of evidence indicating any wrongdoing on the part of Gülen.

Unlike Gülen, who is a private citizen, Erdoğan enjoys broad parliamentary immunities that protect him from criminal proceedings. According to Article 83 of the Turkish Constitution, a member of Parliament who is alleged to have committed an offense before or after elections cannot be arrested, questioned, detained or tried unless Parliament waives his or her immunity. The criminal proceedings against a deputy are suspended until he or she ceases to be a member of Parliament, but the statute of limitations does not include their time in office. Erdoğan has faced several criminal complaints already. Graft prosecutor Zekeriya Öz, who was later removed, filed a lawsuit against the prime minister for launching a defamation campaign, making slanderous remarks and directing false accusations at him to discredit him in the eyes of the public. Last month, a number of lawyers and law associations filed a criminal complaint against the prime minister, alleging that he has made attempts to influence the judicial process in relation to the corruption scandal.

Erdoğan's frontal assault on the Hizmet movement also violates the state's obligation to ensure that those who are part of Hizmet enjoy their right to freedom of thought, conscience and religion. If Erdoğan's criticisms amount to hate speech, the state has an obligation to fight against these stereotypes, especially when they are spread in the media. Let alone fighting with stereotypes, Erdoğan is encouraging people to go after Hizmet members and has directed his aides to disseminate all kinds of fabricated articles in the pro-government media. Erdoğan's policy of purging public officials who sympathize with the Hizmet movement and his hateful speeches targeting Gülen follow a familiar pattern of policies that are usually adopted by authoritarian governments that display hostility toward religious groups, fail to address intolerance and support institutionalized bias and discrimination against religious groups.

As such, Erdoğan is violating Article 9 of the ECHR, which states, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance." The court has extensive case law on the freedom of religion, as it is a pillar of a democratic society. It emphasized the individual and collective features of freedom of religion while limiting the state's interference into religious communities, underlining that the state should remain neutral and impartial when it comes to religious groups. Erdoğan is infringing on the rights and freedoms of Hizmet members.

This certainly does not mean that Gülen is immune to all kinds of criticism. He is an important figure and, as such, there has been huge interest in his works, speeches and activities. That is why Gülen openly welcomes scrutiny, advocates transparency, pays attention to criticism and gives interviews to national and international media. His public record is wide open for everybody to see. The Hizmet movement has repeatedly and positively responded to calls for greater transparency and supported all democratic reforms in enhancing the rule of law, fundamental rights, transparency and accountability in the governance of the country.

According to rumors in the Turkish capital, the last straw Erdoğan may pull is orchestrating a lawsuit based on fabricated stories of the Hizmet working in collaboration with foreign intelligence agencies. He will use assets of Turkey's National Intelligence Organization (MİT), headed by his confidante Hakan Fidan, to build a frivolous case against people who sympathize with the Hizmet movement. The spy agency has reportedly been busy producing false documents and asking for the help of foreign intelligence agencies while false witnesses are being arranged in the bureaucracy. With this move, Erdoğan plans to kill two birds with one stone in a baseless lawsuit: First he will discredit the police and prosecutors who exposed the government's dirty laundry in the massive corruption scandal. Second, he will turn Turkish public opinion to his side against an imaginary enemy that he has built overnight.

Will this strategy work? It hardly can against the background of huge and hard evidence piled up against Erdoğan's government by prosecutors in criminal investigations. As the opposition keeps ratcheting up criticism of the government in terms of corruption, with new evidence leaked to the press every day, Erdoğan will be swimming against the tide. Going after the Hizmet movement, which is respected by millions in Turkey, will only make the situation for Erdoğan worse than it already is on the eve of elections.

Published on Today's Zaman, 10 February 2014, Monday