When Gizem faced trial and a prison sentence over her social media posts, she realised there was no way she could afford to go to jail.
The 26-year-old Kurdish woman was prosecuted after she shared quotations from jailed PKK leader Abdullah Öcalan online and posted news reports from the Kurdish Firat News Agency.
Her family relied on her to provide for them. So Gizem took advantage of an article in the Turkish penal code, which allows a court to suspend a prison sentence and ultimately strike it from the record if the defendant is not convicted of a crime for five years.
It has kept her out of jail, but now she lives in fear of falling foul of the law again.
“I couldn’t afford to be jailed,” said Gizem, who asked her last name not be used. “My elder sister, who is a journalist, was in jail at that time, and I had a responsibility to provide for my family.”
Originally envisioned as a way to keep minor offenders out of jail, Article 231 of the Turkish criminal code, dubbed the Deferment of the Announcement of the Verdict (Hükmün Açıklanmasının Geri Bırakılması-HAGB), allows defendants sentenced to less than two years in prison or to a fine to defer their sentence by five years and keep it off their criminal record, under certain conditions. The sentence is dropped if the defendant is not convicted of another crime.
The measure can be a boon for minor criminals or those who are unlikely to be repeat offenders. But political activists and journalists remain at risk of having their sentences re-imposed unless they self-censor or stop working in their fields. Turkey is one of the leading jailers of journalists around the world.
Deferment also blocks the usual appeals process during the five-year period and can be imposed against the wishes of the accused, leaving journalists fighting prosecution in a state of limbo where they are neither guilty nor innocent.
According to justice ministry statistics, 48,033 criminal verdicts were deferred in 2018. Deferred judgments accounted for 12 per cent of all cases decided by the courts, with nearly half of them involving postponed imprisonment. In more than 17 per cent of cases, the court delayed the decision to announce the acquittal of a defendant.
Ministry of justice figures also show that, while verdict deferments stayed relatively steady and even declined between 2011 and 2018, the number of convictions has risen dramatically, from 1.2 million to 1.96 million. The number of people who accepted deferments by the courts fell from 634,000 in 2011 to 488,000 in 2018.
Although there is no official data, the number of Kurdish citizens prosecuted for their social media posts appears particularly high.
Özcan Kılıç, a lawyer who often defends Kurdish journalists and social media users in freedom of speech cases, said the deferments were beneficial to those sentenced for simple offenses, or in cases where the defendant was unlikely to be prosecuted again.
That rules out journalists, who are frequently prosecuted in Turkish courts. Instead, the deferment can push journalists to self-censor to avoid facing trial again or push them to leave the profession altogether.
“Journalists face various accusations, not just crimes against the state but accusations such as defamation, insults or attacks on personal rights,” said Kılıç. “The courts must apply either a sentence or an acquittal.”
He said that while the deferment of the announcement of the verdict meant that the crime did not appear on a person’s record, it jeopardised the presumption of innocence principle. Courts sometimes applied the rule against the wishes of the defendant as an easy way out to avoid concluding difficult or sensitive cases. The suspension also blocked the usual appeals process, leaving the accused in limbo.
Although they can apply to the constitutional court, the highest in the land, some of Kılıç’s clients have spent over four years in the process without a resolution.
“When the court applies the deferment of the announcement of the verdict, you are neither convicted nor acquitted,” he said.
Eren Keskin, a lawyer and human rights advocate, said that accepting deferments often amounted to accepting punishment for an act that should not have been a crime in the first place.
“If you believe that a thought cannot be a crime, accepting [it] feels like I am accepting the punishment,” she said. “Therefore, in the cases where I am accused because of my freedom of expression, I don’t accept the deferment of the announcement of the verdict in order not to legitimise the punishment.”
Gizem said that, although she herself was not a journalist, the experience had had a huge impact on her life.
“Not being able to write, talk or perform my legal rights is challenging both spiritually and to my conscience,” she said, adding, “I always feel like I should be more cautious, or else I could be sent to jail.”