Reform the Penal Code for Human Rights / Group 2 – Analyzing of The Articles of The Penal Code
CHAPTER 3 Offences against Society
Section 5: Offences against Public Peace
Incitement to commit an offence
ARTICLE 214 – (1) A person openly inciting to commit an offence shall be sentenced with imprisonment of six months to five years.
(2) The person who has a part of the public armed against another part, and incites them to kill each other shall be sentenced with imprisonment of fifteen to twenty four years.
(3) Where the offences of incitement are committed, the inciting person shall be sentenced as the instigator the offences.
The reasoning for the provision stated that “for the sake of public peace one cannot wait for the harmful result of the offence and apart of the rules of participation the danger has to be sanctioned.”
The borders of “openly incite to commit a crime” are unclear and open to broad interpretation. The first paragraph punishes incitement, while the third paragraph puts the inciting person on one level with the instigator.
Looking at the existing approach of the courts on freedom of expression and democratic rights the first paragraph is a serious obstacle in front of freedom of expression. Because the elements of the crime remain clouded judges who feel that they have to protect the State can easily pass decisions against the freedom of expression.
The judgments of the ECoHR take the element of “calling for violence, armed struggle…” as the border line for becoming an offence (like in the Incal v. Turkey and the Zana v. Turkey case). In order to justify the public intervention the gravity of words an author or speaker uses are not the only basis for evaluation the social effect and consequences have also to be considered. In this provision the social effects and consequences remained abstract.
Like in all offences of danger the same objection is valid hear. While expression certain views, in particular those expressed by dissidents, the subjective interpretation of the applicators of law in connection with the personality of the alleged offender can be termed “a danger for public peace” and punished.
The wording of the second paragraph is clear in terming the incitement by means of getting people armed and, therefore, we have no objection in keeping this provision. In this sense the first and third paragraph should be cancelled and the text would be:
Article 214
The person who has a part of the public armed against another part, and incites them to kill each other shall be sentenced with imprisonment of fifteen to twenty four years.
Praise of crimes and the offender
ARTICLE 215 – (1) A person openly appraising a committed crime or an offender because of the crime he has committed shall be sentenced to imprisonment of up to two years.
The limits and scope of an action of “praising a crime” or “a person because of the crime s/he has committed” is unclear. Punishment of an abstract offence is the result, because it remains unclear what a committed crime means. The understanding and subjective approach of the executors of law gains importance on a dangerous level.
The question whether an opinion includes praising or not changes according to the person. The problems relating to this provision appeared immediately in practice. In recent months a party executive on district level was charged with this provision, because he had used the word guerrilla when stating that he did not want soldiers or guerrillas to die. In the legal practice in Turkey this provision can be applied according to the political atmosphere against the opposition. The provision should be cancelled completely.
Inciting the population to enmity or hatred or humiliation
ARTICLE 216- (1) A person who openly incites groups of the population to enmity or hatred towards another group based on social class, race, religion, sect or regional difference in a manner which might constitute a clear and imminent danger to public order shall be sentenced to imprisonment of one to three years.
(2) A person who openly humiliates part of the population on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to imprisonment of six months to one year.
(3) A person who openly humiliates the religious values of a part of the population shall be sentenced to imprisonment of six months to one year in case the act is likely to distort public peace.
In its current form the humiliation of homosexuals, atheists or communists or similar groups is excluded.
Even though paragraph 2 includes the word “gender” this is clearly meant to be the difference between men and women and, therefore, the term “sexual orientation” should be included in paragraph 1 and 2. Both paragraphs should also carry the “political or philosophical belief” in order to protect all parts of society.
If the offence is committed against one of the afore mentioned groups this is more or less ordinary. The legislative did not distance itself from the general view.
No social group should be discriminated. The provision in its current form is against international human rights standards and the principle of equality as set out in the Constitution.
Parallel to the first paragraph the condition of “a clear and imminent danger to public order” should be added.
The term of “religious values of a part of the population” is open to interpretation of the executors of law. It is certainly not appreciated of religious values are humiliated. But even if the holders of the religion are disturbed criticism should be part of the freedom of expression.
It is always possible that certain views are taken as natural by some people, while other people find them humiliating. Considering that the majority of the population is Moslem one can guess that the provision was prepared for the sensibility of the great religious group.
Again, the approach of people in a certain region and in a certain social atmosphere may get decisive on how the applicators of law will deal with this provision. The addition of “a clear and imminent danger to public order” would exclude the use of this provision in many situations.
It seems to be quite obvious that the provision will not be used in case that a minority religious group is humiliated. In other words, humiliation against Muslims will be punished, while humiliation of Christians will get unpunished. Members of the Sunnites appear to be protected, while the same cannot be said for Syriacs.
There is a high possibility that the provision will be used against critical voices. Therefore, the third paragraph should be skipped altogether. It is suggested to revise the Article:
Inciting the population to breed enmity or hatred or humiliation
ARTICLE 216- (1) A person who openly incites groups of the population to enmity or hatred towards another group based on social class, race, religion, political or philosophical belief, sexual orientation, sect or regional difference in a manner which might constitute a clear and imminent danger to public order shall be sentenced to imprisonment of one to three years.
(2) A person who openly humiliates part of the population on grounds of social class, race, religion, sect, political or philosophical belief, gender, sexual orientation or regional differences in a manner which might constitute a clear and imminent danger to public order shall be sentenced to imprisonment of six months to one year.
Second Opinion
The third paragraph of the provision meets a social need and should be retained.
The second paragraph should include the condition of “a clear and imminent danger to public order”. In that way the provision would no longer be abstract, but get a concrete level of danger.
In the Yasar Kemal (Gökceli) v. Turkey case the ECoHR ruled inter alia: “the content of the articles could not be deemed to constitute an incitement to violence, armed resistance or an uprising”. It accordingly considered that the seizure of the book and the criminal conviction of the author of the articles were measures that were not “necessary in a democratic society”. It held unanimously in both these cases that there had been a violation of Article 10 of the Convention.
In this judgment the ECoHR delivered a concrete example on how “a clear and imminent danger to public order” can be understood. It should have been advisory to include a reference to this judgment in the reasoning for this provision.
Incitement to disobey the law
ARTICLE 217 – (1) A person who openly incites the population to disobey the laws shall be sentenced to imprisonment of six months to two years or a judicial fine, if the incitement is suitable to distort public peace.
The provision of “incitement not to abide by law” is an offence of danger. It is clear that the provision is not compatible with the needs of a democratic society and does not meet a necessity.
The State is in a position to punish persons acting against the law and has other means to secure that the citizens abide by the law. Anyone, who acts against the laws, will be punished.
The provision is against the freedom of expression. Article 217 should be cancelled.
Common provision
ARTICLE 218 – (1) (as amended by Law No. 5377 of 29 June 2005 Article 25) If the offences defined in the Articles above are committed through the media and press, the penalty shall be increased by half. However, expressions of thought made with the purposes to criticize and which do not exceed the limits of information do not constitute an offence.
The first sentence in this provision on an increase of sentences is suited to exert pressure on the press that has a special place in communication. In the Castells v. Spain case the ECoHR made a judgment to this effect. Therefore the first sentence should be omitted.
The second sentence on no punishment is appropriate, but regarding Article 90 of the Constitution (regarding international convention as part of national legislation) and the case law of the ECoHR make such a provision unnecessary.
In a country with settled democratic tolerance and the courts following this in their verdicts such a provision may not be necessary, but under the current condition the sentence should be retained but the restriction “not beyond the limits” should be omitted.
The limits for providing information are not set and, therefore the applicators of law may use broad interpretation and discretion on this subject. It is also not suitable to set a condition of “providing information”, because persons not belonging to press and publications may make statements with the aim of informing the public. Therefore, the expression “inform the public” should be added.
The following formulation would be suggested:
ARTICLE 218 – Expressions of thought made with the purposes of information, informing the public and criticism do not constitute an offence.
Abusing religious services in the course of duty
ARTICLE 219 – (1) Whoever, being a spiritual leader, such as imam, religious orator, preacher, priest or monk, while performing his duty, publicly reproaches or vilifies government administration or the laws of the State or the activities of the Government, shall be punished by imprisonment of one month to one year and by a judicial fine or by one of these punishments.
(2) Any of the persons indicated in the paragraph above, who by making use of his title, reproaches or vilifies the government administration and the laws and the regulations and orders and any duty or authority of Governmental departments; or instigates or incites people to disobedience against implementing laws or government orders or civil servants to disobedience against performing the requirements of their duty shall be imprisoned for three months to two years and shall be punished by a judicial fine and shall be disqualified, temporarily or for life, from holding his office and from receiving any benefit or allowances of that office.
(3) Any religious chief or official who by taking advantage of his title compels or convinces a person to act or to talk contrary to the laws or lawfully acquired rights, shall suffer the punishment prescribed in the paragraph above.
(4) If one of these persons commits an offence – other than those listed above – by taking advantage of his religious title, the penalty foreseen for that offence in the law shall be increased by one sixth and imposed on the perpetrator.
(5) Nevertheless, the penalty shall not be increased if the law has already taken into consideration the aforementioned status.
On the first look this provision appears to protect the principle of laicism enshrined in the Constitution. Religion and politics should be kept apart and the exploitation of religions bonds and feelings of the society should be prevented.
It can be said that it is positive for the protection of democratic society and the installation of social peace to make a provision that prevent religious leaders to misuse their power of influencing the society. But looking at the specific conditions in Turkey, we believe that the implementation of this provision can lead to damage to thought and freedom of expression.
The vast majority of the population in Turkey is Muslim (generally said to be about 90%). Although there is no open religious conflict it can easily happen that members of religious minorities are discriminated against and belittled,
The imam, religious orator and the monks are working under the Presidency for Theological Affairs. If these people talk to their parishes they are to a large extent bound by the institution that controls them.
In that sense it is hard to imagine that Muslim religious leaders of the Sunnite faith can be the perpetrators of the provision. The provision appears to be mainly directed against members of other religious groups. Thinking about the intensity of religious feelings of the majority; the political structure of the country and the fact that members of minority religious groups hardly ever take a position in the State apparatus one can guess that the State officials and members of the jurisdiction from time to time create problems with their approach to members of religious minorities.
Religious leaders carry out their duties not always at set hours. The expression of “while carrying out their duty” is open to interpretation. Likewise the formulation of “reproaching and vilifying the administration of government and State laws” depends on the views of the applicators of law on religion and are open to broad interpretation.
For example, if the Patriarch of the Greek Orthodox Church criticizes that the priests’ school on Heybeliada is not opened or someone else complains that the Presidency for Theological Affairs does not provide sufficient aid this could easily be seen as reproaching and vilifying the government.
It is also interesting to notice that the provision was written in a complicated language contrary to the currently used language without making any changes to the old formulation.
In a democratic society the freedom of expression that is granted to all citizens should also apply for religious leaders. The provisions that are applied for usual citizens can also be applied for religious leaders and in that sense are sufficient. The provision should be skipped.
Establishing organizations for the purpose of committing crimes
ARTICLE 220- (1) Those that establish or direct organizations for the purpose of committing crimes shall be sentenced to imprisonment of two to six years if the structure of the organization, number of members, equipment and supplies are sufficient to commit the intended crimes.
(2) Those that become members of organizations established to commit crimes shall be sentenced to imprisonment of one to three years.
(3) If the organization is armed the sentences stated above will be increased from one fourth to one half.
(4) If a crime is committed within the framework of the organization’s activities, these crimes will be punished separately.
(5) The heads of the organizations shall also be sentenced as the perpetrators of all crimes committed within the framework of the activities of the organization.
(6) The person who commits a crime on behalf of the organization although he is not a member of the organization shall also be punished for being a member of the organization.
(7) A person who aids and abets the organization knowingly and intentionally although s/he does not belong to the hierarchical structure of the organization shall be punished as a member of the organization.
(8) A person who makes propaganda for the organization or its objectives shall be punished to imprisonment of one to three years. If the said crime is committed through the media and press the sentence will be increased by one half.
Although paragraph 7 of Article 220 does not relate to freedom of expression we believe that it was added on purpose and will have an aggravating effect on the execution of sentences
Paragraph 8 provides that the person, who makes propaganda for the organization or its aims, will be punished and that the sentence will be increased, if the offence is committed via the press. We think that the provision carries certain risks for the freedom of expression and can constitute a serious obstacle for a number of freedoms according to its implementation.
In the first place the provision leaves much space for interpretation and a broad area for punishment. In that sense it is against the basic principle of “offences and sentences cannot be unlawful”.
The provision is against the principle of necessity and predictability. It can be advocated that an offence that the organization included in its aims to be reached with armed actions can also be an aim to be achieved with democratic means.
In that case a person defending the aims of an organization but not the way of armed actions can easily be judged as acting parallel to the organization, even of s/he does not even know of the existence of such an organization.
Considering the reflex of protecting the State first that is firmly settled in the elements of prosecution in Turkey and the understanding of the holy State that exists in wide parts of society many violations of the freedom of expression can occur under this provision.
The part on the press is even worse. The provision can be used to silence and hinder the democratic opposition; it will hinder changes with democratic methods and give a reason for stagnancy in society.
Therefore, paragraph 8 has to be skipped completely.
Hats and Turkish characters
ARTICLE 222- (1) Persons who contravene the bans or obligations laid down in the Law on the Wearing of Hats (No. 671) of 25/11/1925, the Law on the Approval and Implementation of Turkish Characters (No. 1353) of 01/11/1928 shall be sentenced to imprisonment of two to six months.
Law No. 671 provided in general that “hats” had to be worn and other headgear was forbidden. Law No. 1363 provided for the letters to be used in writing Turkish and prohibited the use of Arabic letters. Both laws obviously were passed during the foundation of the Turkish Republic and had their place in establishing a new society.
But today different headgear is used, some of which openly are in contravention to the Law No. 671, but usually there is nothing extraordinary about it. In particular in the countryside scarves (posu) are used to protect the head against the heat.
Bearing in mind that specific laws exist for the order of dresses in official institutions the provision is merely a reflection of an authoritarian approach, interfering with every day’s habits of dressing. It is not in line with the needs of current society and a restriction of freedom.
In the same way, people who use Arabic letters in their private correspondence or who print a book in Arabic letters can be punished. This is a clear restriction of freedoms. Even though it can hardly be imagined that the provision will be applied in the presence and the near future, it is interesting to notice that a similar ban does not exist for Greek or Cyrillic letters or other alphabets. In that sense it is obvious that the provision does not meet a current need.
This kind of prohibitions does not comply with a democratic society. They are a dogma that an ideological State is trying to impose. As an obstacle for the changes of a society as a living organism such provision should not be included in law and the provision should be skipped altogether.