Reform the Penal Code for Human Rights / Group 1 – Analyzing of The Articles of The Penal Code
Section Eight
Crimes against Honour
Insult
ARTICLE 125- (1) A person who attributes a concrete act or a fact to another person by undermining his honour, dignity or respectability or who attacks a person’s honour, dignity or respectability through insults shall be sentenced to imprisonment for a term of three months to two years or punished with a judicial fine. In order to punish an insult in the absence of the victim the act must have been witnessed by at least three persons.
(2) If the act is committed by means of a voiced, written or visual message addressing the victim, the perpetrator shall be sentenced to the penalties set out above.
(3) If the offence of insult is committed:
a) against a public official in connection to his/her duty;
b) due to expression, changing, efforts for expansion of one’s religious, political, social, philosophical beliefs, thoughts and opinions, one’s compliance with the rules and prohibitions of his/her religion;
c) through mentioning the holly values of the religion the person is a member of, the minimum length of the penalty cannot be less than one year.
(4) (as amended by law No 5377 of 29 June 2005 /Article 15) In case the offence of insult has been committed in public, the penalty shall be increased by one sixth.
(5) (as amended by law No 5377 of 29 June 2005 /Article 15) In case of insults to public officials working as a committee, due to their duties, the offence shall be deemed to have been committed against all committee members. In such a case, the provisions related to chain crimes shall be applied.
Paragraph 5 raises doubts on determining the victim. “Civil servants working as a committee” means that the offence will have been committed against all members, if they are civil servants. The result will be disproportional and against the principle of proportionality of crime and offence.
The European Court of Human Rights (ECoHR) evaluates the gravity of sanctions by taking into account the proportionality if an offence has occurred. In this sense the provision is against the jurisdiction of the EcoHR.
In addition, the investigation into such an offence should not start ex officio, but depend on a complaint. One might get the impression that this provision is the reflection of an understanding of the holy State.
The 5th paragraph should be reworded only to cover insults against a team.
Suggestion: “If more than one person is the victim of this offence the provisions for ‘chain crimes’ shall be applied. “
Article 126
Determination of the Victim
Article 126 – (1) If the name of the victim has not openly been mentioned when committing the offence of an insult or the accusation is disguised, it will be considered that the name has been mentioned and an insult has been pronounced, if there is a situation without hesitation as to the character (of the offence) and the person of the victim.
Article 127
Proof of Accusation
Article 127 – (1) The impugned act is not punishable, if the accusation is proven. The act is deemed to have been proven, if the insulted person was convicted by a final judgment. In other circumstances the acceptance of the request of the proof of allegation shall depend on the condition that there is a public benefit from the clarification of whether or not the allegation was correct or on the consent of the complainant.
(2) A punishment shall be imposed on a person who insults an individual by making reference to that individual’s proven act.
Article 130
Insult of the memory of a person
Article 130- (1) A person who commits under the testimony of at least three persons the offence of insult of the memory of a dead person shall be imprisoned for a term of three months to two years or punished with a judicial fine. If the offence is committed in public it shall be increased by one sixth.
(2) If the remains of the deceased or his/her body is taken or his/her corpse or bones are subjected to defamation he/she will be subjected to an imprisonment term of 3 months to 2 years.
Article 132
Offences against Private Life and Secret Areas of Life
Violation of secrecy of communication
Article 132 – (1) A person who violated the secrecy of communication between persons with be punished with imprisonment between six months and two years or with a judicial fine. If the violation is committed by recording the contents of communication, a sentence of between one year and three years’ imprisonment is passed.
(2) A person who discloses the contents of communication between person against the rules of law, will be punished with imprisonment between one and three years.
(3) A person who disclosed the communication with someone else in public without the consent of the other person will be punished with imprisonment between six months and two years or a judicial fine.
(4) If the contents of communication between persons is published via press and publications, the sentence will be increased by one half.
Question: As a journalist I laid my hands on some correspondence between a suspicious businessman and the Minister for Finance. The letter contains illegal plans and reference to clear offences. Is the disclosure in line with the rule of law? Will I be punished, if I publish this?
On the one hand, the provision is necessary to protect private life and the secrecy of communication. But for the proof of certain situations there are doubts on the necessity of such a provision. If there is proof of an element of crime, an exception to the principle of secrecy of private life can be made. However, there is already a provision in the penal code (Turkish Penal Code = TPC) on the situations and ways to tapping telephones.
If the contents contain an element of crime the reporting person may get under accusations. To avoid such irritations the note of “wish for confidentiality” can be added. For situations similar to the one raised in the question the additional condition of “information of the public on acts that have clearly been termed as crimes in law or with the aim of denouncing a crime do not count as a violation of the principle of secrecy of private life.“
Second Opinion
The protection embodied in Article 8 of the European Convention on Human Rights (ECHR) relates rather to the means and methods of communication than the contents of communication. Therefore, the State cannot argue that telephone tapping of criminal activities is not included in paragraph 1 of Article 8.
In the case of Halford v. UK the ECoHR judged that the tapping of business and private phones and the use of the office phones fell within this provision.
For this reason the addition of “wish for confidentiality” is dangerous. Because of the nature of private communication it should be accepted to keep it secret.
As mentioned in the Kruslin v. France and Huvig v. France case the tapping of phone conversations or intervention by other means are a serious interference in private life and communication and, therefore, must be related to specified law.
All that could be added to the Article would be “an intervention into the secrecy of communication because of prosecution of a crime must be based on a clear legal provision and on order of a judge.”
Article 164
False information on Companies and Cooperatives
Article 164 – (1) Founders, partners, administrators, directors or representatives or board members or liquidators of a company of cooperative that against the truth provide or let provide important information in their declarations to the public or reports to the general assembly or in their suggestions that might lead to harm for the concerned party will be punished with six months to three years’ imprisonment or with a judicial fine of up to 1000 days.
The term of “wrongful important information that might harm the concerned parties” may be open to discussion it was considered correct not to include all false information, but to add the condition that the information must be important.
It is only natural that representatives of companies and cooperatives a sanctioned if their provided information that can harm other people. The provision is in line with the social needs and should be kept in its current form.
As can be seen in the reasons for this provision the aim was to secure that the administrators act according to the principles of honesty so that the trust of the public can continue. The provision does not need to be cancelled or amended.
Section 7: Offences against General Ethics
Indecent acts
Article 225 – (1) Persons who have sexual intercourse in public or who perform exhibitionism shall be sentenced to imprisonment for a term of six months to one year.
The offence under the same heading in the old law was broadened and generalized in a dangerous way. The wording in the old penal code Article 419 was “indecent acts in public” and “sexual intercourse in public”. Sample verdicts on this provision met the public expectation and there was no need to make a special formulation.
In the reasoning for the provision sexual intercourse is defined as “any behaviour towards the satisfaction of sexual wishes” and exhibitionism is defined not just as display of the sexual organ but any kind of parts of the body that can be abusive.
In practice the text of a provision and the reasoning have to be considered jointly. If text and reasoning are taken together some behaviours that most parts of society do not object to – or at least that do not lead to horror – such as the way to dress (show parts of the chest, belly or leg) or demonstrations of love (kissing on the lips) can easily be considered an offence.
The implementation of this provision depends on the attitude of judges and can change according to the sociological specifics of regions. It cannot be accepted that personal views and regional effects the decision whether an offence exists or not.
As a result protest acts such as PETA, who undress when defending animals’ rights or the villagers of Bergama, who protested in their underwear and the dresses of many women and men in tourist places can easily be punished.
It is against the needs of a democratic society that the State can interfere with dresses and private life to such a degree. On the other hand, it cannot be defended to leave all kinds of indecent acts unpunished.
The provision should be reviewed and in the light of existing sample decision evaluated again.
Second view
The provision is directed at protecting the public morale and meets a social need. Therefore, it should be kept as it is.
Obscenity
ARTICLE 226 – (1) a) A person who gives or displays to a child products containing obscene visual, printed or audio material or reads or makes them read or listen to such material,
b) A person who openly shows the content of such material in places accessible or visible to children, or who openly displays them, who exhibits them in a visible manner, who reads or talks about them to children, or who makes children read or talk about the content of such material,
c) A person who presents such products to sale or rent in a manner that reveals the content of the material.
d) A person who submits to sales, sells or rents such products in places other than specified sales points,
e) A person who gives or distributes such products along with the sales of other products or services and who therefore gives them free of charge,
f) A person who advertises such products shall be sentenced to imprisonment for a term of six months to two years and a judicial fine of up to 5000 days.
(2) A person who broadcasts or publishes obscene images, printed or audio material or who acts as an intermediary for this purpose shall be sentenced to imprisonment for a term of six months to three years and a judicial fine of up to 5000 days.
(3) A person who exploits children in the production of products including obscene images, printed or audio material shall be sentenced to imprisonment for a term of five to ten years and a judicial fine of up to 5000 days. A person who imports such material, who duplicates, presents to sales, sells, transfers, stores, exports, keeps in possession or submits it to the use of others shall be sentenced to imprisonment for a term of two to five years and a judicial fine of up to 5000 days.
(4) A person who produces, imports, presents to sales, sells, transfers, stores, exports, avails for the use of others or keeps in possession products containing written material, audio recording or images of sexual acts performed by use of force, with animals, on human corpse, or other unnatural means shall be sentenced to imprisonment for a term of one to four years and a judicial fine of up to 5000 days.
(5) A person who broadcasts or publishes the content of the products stated in paragraphs three and four through press and media or who acts as an intermediary for this purpose or who makes children see, listen to or read such material shall be sentenced to imprisonment for a term of six to ten years and a judicial fine of up to 5000 days.
(6) Security measures for these offences shall be imposed on legal entities.
(7) Excluding paragraph three and provided that access to children is prevented, the provisions of this Article shall not apply to scientific, artistic and literary works.
“Obscenity” in the sense of frank and free, against moral and improper is open to broad and subjective interpretation. The terms used in law should not allow for different interpretation in its implementation.
In the first paragraph the word “obscene” should be deleted and the condition of “suitable to harm the psychological and sexual development of the child” should be added. It should be obligatory to consult experts/psychiatrists on the subject. Protection of the child is vital, but it is also necessary to clarify the borders.
It is obvious that in punishing the publications the aim was to solve the problems fundamentally. But looking at the point the social values in the world and Turkey have reached the provision is not justified and far from solving the problem. In addition, the Law on Protecting Children from Nasty Publications provides for sentences of written material. It may lead to double sentencing, if the subject is also defined in the penal code. In that sense the second paragraph should be deleted altogether.
The expression of obscenity should be replaced with the word pornographic, except for the third paragraph that is of special importance for the protection of the children.
In the fourth paragraph it is not clear, what the sexual means “other than the natural ones” means, unless it refers to all kinds of sexual intercourse that does not relate to the unification of the sexual organs of man and woman, is not directed at reproduction.
The lack of clarity can lead to broad competence for the applicators of law according to their approach on sexual subjects.
It is unnecessary to control the approach on sexuality in public life and the people in such a legal manner. This paragraph can be used to punish homosexual relations, fetishism and similar things.
Likewise, it is unnecessary to punish someone who possesses material on unnatural sexual behaviour. This is a dangerous interference in the private life of individual and will punish them according to their sexual wishes and tendencies. This part should be removed.
In the fifth paragraph sentences are foreseen for a person who makes it possible that children see, hear or read… and in the seventh paragraph an exception was made to material “as mentioned in paragraph 3 and under the condition that children have not access”.
The borders of protection and the persons for protection have to be specified. In newspapers it is almost impossible to prevent access for children to the articles. Therefore, the condition of prevented access for children should be deleted.
The revised wording of the article was suggested as:
ARTICLE 226 – (1) a) A person who gives or displays to a child products suitable to harm the psychological and sexual development of the child visual, printed or audio material or reads or makes them read or listen to such material,
b) A person who openly shows the content of such material in places accessible or visible to children, or who openly displays them, who exhibits them in a visible manner, who reads or talks about them to children, or who makes children read or talk about the content of such material,
c) A person who presents such products to sale or rent in a manner that reveals the content of the material.
d) A person who submits to sales, sells or rents such products in places other than specified sales points,
e) A person who gives or distributes such products along with the sales of other products or services and who therefore gives them free of charge,
f) A person who advertises such products shall be sentenced to imprisonment for a term of six months to two years and a judicial fine of up to 5000 days. An expert opinion has to be obtained on material suitable to harm the psychological and sexual development of the child
(2) A person who broadcasts or publishes obscene images, printed or audio material or who acts as an intermediary for this purpose shall be sentenced to imprisonment for a term of six months to three years and a judicial fine of up to 5000 days.
(4) A person who produces, imports, presents to sales, sells, transfers, stores, exports or avails for the use of others products containing written material, audio recording or images of sexual acts performed by use of force, with animals or on human corpse shall be sentenced to imprisonment for a term of one to four years and a judicial fine of up to 5000 days.
(5) A person who broadcasts or publishes the content of the products stated in paragraphs three and four through press and media or who acts as an intermediary for this purpose or who makes children see, listen to or read such material shall be sentenced to imprisonment for a term of six to ten years and a judicial fine of up to 5000 days.
(6) Security measures for these offences shall be imposed on legal entities.
(7) Excluding paragraph three and provided that access to children is prevented, the provisions of this Article shall not apply to scientific, artistic and literary works.
Second Opinion
The term “suitable to harm the psychological and sexual development of the child” should be added to the first paragraph of Article 1.
The Handyside v. UK judgment of the ECoHR can be guidance. In this judgment the ECoHR makes reference to local values.
The case referred to a school book with sexual information entitled “Little Red Schoolbook”. It was confiscated in the UK on the grounds that it stipulated juveniles to use drugs and pornography. The book had been written by a Danish citizen and with small corrections had been published in Belgium, Finland, France, Germany, Greece, Italy, the Netherlands, Norway, Sweden, Switzerland and countries outside Europe.
In its judgment the Court held inter alia: “In particular, it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject.” Subsequently it found a violation of Article 10 ECHR.
For the protection of moral values of society the provision should be retained.
Article 260
Evasion or refusal of public duty
Article 260 – (1) Public personnel that against the law and jointly leaves the duty, does not appear or temporarily or partly does not fulfil its duty or slow down the work will each be sentenced to imprisonment between three months and one year. If the act does not involve more that three civil servants no sentence will be passed.
(2) If public personnel stops working temporarily or for short terms or slows down working in connection with the professional and social rights, the sentences will be reduced or may not be imposed at all.
The provision aims at preventing public personnel from activities for the social/trade unionist/economic rights. It is a provision to put pressure on the use of the right to organize and prevention of trade unionist rights of civil servants.
In paragraph 2 the conditions for reducing sentences or avoiding punishment are listed. It is left to the discretion of the judge to impose a sentence. This condition points at the same general aim and leaves more room for discussion.
In Turkey civil servants have shown their democratic reactions and have stopped working for short periods or slowed down their work. Article 10 of the ECHR protects the freedom of expression. This is not restricted to verbal expressions.
Article 11 ECHR provides:
“Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
As can be seen, the ECHR has agreed on similar restrictions of the right to organize. The Law No. 4668 on Trade Unions of Public Personnel has spelt out the restriction and provided in Article 38 for punishment in case of violation. In a real democratic society the punishment should be of disciplinary nature and not penal sentences.
Article 237
Influencing Prices
Article 237 – (1) A person who on purpose spreads false news or tidings or resorts to other forms of cheating that may result in an increase or decrease of workers’ wages or nutrition and goods will be sentenced to imprisonment between three months and two years or given a judicial fine.
(2) If the workers’ wages or the value of nutrition and goods increases or decreases after the offence the sentence will be raised by one third.
(3) If the perpetrator is a scalper or a stockbroker the sentence will additionally be increased by one eighth.
The character of “dangerous crime” should be removed from the offence and the sentence should only be passed, if the intended result has occurred. The formulation of “that may result” leaves much room to the executors of law for subjective interpretation.
The second paragraph should not count as an aggravating reason, but be the material element of the offence. The provision should be revised by taking paragraph 1 and 2 together:
Article 237 – (1) A person who on purpose spreads false news or tidings or resorts to other forms of cheating that may result in an increase or decrease of workers’ wages or nutrition and goods will be sentenced to imprisonment between three months and two years or given a judicial fine, if the workers’ wages or the value of nutrition and goods increases or decreases.
(2) If the perpetrator is a scalper or a stockbroker the sentence will be increased by one eighth.
Article 239
Announcing secrets of trade, banks or customers
Article 239 – (1) Anyone who because of his/her position or duty, profession or arts craft announces or discloses information and documents s/he possesses on secrets of trade, banks or customers to unauthorized persons will be punished on complaint to imprisonment of one to three years and a judicial fine of up to 5000 days. If the information and documents have been obtained in an unlawful manner before they were given to unauthorized persons the sentence will be applied according to this provision.
(2) The provision of the first paragraph also apply to information on scientific inventions and industrial implementations.
(3) If the secrets are given to a foreigner not resident in Turkey or his/her employees the sentence will be increased by one third. In this case the condition of a formal complaint is not needed.
(4) A person who uses violence or threats to force someone to provide information and documents mentioned in this Article will be punished with imprisonment between three and seven years.
Regarding the current situation of international capital the separation of foreign capital should be left aside and the third paragraph should be skipped. Furthermore the condition of complaint should be retained, since the damage was done to a person or a company.
Second Opinion
The necessity of complaint should be retained. Apart from this the provision in paragraph 3 is appropriate, since it attempts to transfer information abroad.