Reform the Penal Code for Human Rights / Group 5 – Analyzing of The Articles of The Penal Code
Offences against the Security of the State
Article 304
Incitement to war against the State
ARTICLE 304- (1) A person who incites the authorities of a foreign state to wage war against the State of Republic of Turkey or conduct hostile movements or who cooperates with the authorities of a foreign State to that end shall be sentenced to imprisonment of ten to twenty years.
(2) In the meaning of this Article, the direct or indirect support of organizations established to commit crimes against the Turkish State shall be considered as an act of hostility.
(3) Legal entities shall be subject to particular security measures because of offences described in this Article.
The term of “hostile movements” is unclear so that the definition of the offence becomes fungous. It is also unclear what incitement of officials of foreign States to hostile movements means. The scope of the provision is extremely broad. The term of “incitement” alone makes it possible to use the Article for a restriction of freedom of expression. Therefore, it should be advisable to delete the expression “…or incites officials of foreign State to resort to hostile movements”.
The second paragraph of the provision is redundant and was introduced to broaden the scope even more. It is impossible to judge on an organization and its members regardless of the aims of the organization. In case that the organization aims at the security of the State the members of such an organization will be punished according to the relevant provisions.
The expression of “indirect support” introduces the possibility of interpretation and again broadens the scope of the provision. Any kind of expression that could be interpreted as an organization being in favour of something could be punished. If the expression “…or incites officials of foreign State to resort to hostile movements” is deleted in paragraph 1, paragraph 2 becomes redundant and, therefore, it should be skipped altogether.
The third paragraph seems to be dependent on paragraph 2, but even if paragraph 2 is skipped the provision of paragraph 3 can be kept. It was suggested to change the provision in the following manner:
ARTICLE 304- (1) A person who cooperates with the authorities of a foreign state to wage war against the State of Republic of Turkey shall be sentenced to imprisonment for a term of ten to twenty years.
(3) Legal entities shall be subject to particular security measures because of offences described in this Article.
Article 305
Gaining an advantage in order to carry out an activity against fundamental national interests (The title was amended by Article 38 of Law No 5377 of 29 June 2005)
Article 305 – (1) (Amended by Article 38 of Law No 5377 of 29 June 2005) Any citizen or foreigner staying in Turkey, who gains material advantage for himself/herself or for others, directly or indirectly, from foreigners or foreign organizations due to or for the purpose of committing acts that are against fundamental national interests shall be sentenced to imprisonment of three to ten years and a judicial fine of up to ten thousand days. The same sentence shall be given to those who provide or promise the advantage.
(2) (The second paragraph was amended by Article 38 of Law No 5377 of 29 June 2005) In case the act is committed during war, the sentence shall be increased by half.
(3) If the offence is committed outside wartime, the prosecution of the offence is subject to the authorization of the Minister of Justice.
(4) The term “fundamental national interests” means independence, territorial integrity, national security and the fundamental qualities defined in the Constitution of the Republic.
The term “fundamental national interest” is very broad in its sense. It can be interpreted in a way that violates basic rights and freedoms. It is worrying that for an offence with such a high sentence the basic definition is very dilative.
In paragraph 4 an attempt was made to define the term. Even if several words are cited the result is far from being satisfactory, because the expression used need further explanations. In that sense paragraph failed to make a clear definition of what the national interests mean.
In addition, paragraph 3 shows that the offence cannot really be a danger, since it was left to the initiative of political will to start a prosecution. That of course will lead to some people going without punishment while – according to the will of the political authority – others will face a sentence of up to 10 years’ imprisonment. In that sense the provision is missing objective elements. According to the changing criteria of the political conditions the provision can be used to hinder freedom of expression.
With this provision almost all kinds of oppositional statement can be punished and the activities of NGOs that are run with material support of foreign institutions can be included as offences under this provision.
Because of these considerations Article 305 TPC should be cancelled altogether.
Article 306
Recruitment of soldiers against a foreign State
ARTICLE 306 – (1) A person who without authorization recruits soldiers or engages in other hostile activities against a foreign State in a manner which exposes the Turkish State to the risk of war shall be sentenced to imprisonment of five to 12 years.
(2) If war occurs as the result of the act, the penalty shall be life imprisonment.
(3) If the act is fit to merely impair political relations with the foreign State or to expose the Turkish State or Turkish citizens to the risk of retaliation, the perpetrator shall be sentenced to imprisonment of two to eight years.
(4) If political relations are broken off or retaliation takes place, the perpetrator shall be sentenced to imprisonment of three to ten years.
(5) The prosecution of the offence referred to in the present article is subject to the authorization of the Minister of Justice.
(6) This article will not be applicable for resistance movements which have the objective of self defence against the forces of the foreign country which invade part or all of the territory of the State during war time.
The term of “other hostile movements” in the first paragraph has been given a very broad limit. Therefore, depending on the approach of the executors of law the provision can lead to include expressions of ideas under this provision because of the formulation open to interpretation. The term “other hostile movements” should be eliminated und the first paragraph should be worded as:
A person who without authorization recruits soldiers against a foreign State in a manner which exposes the Turkish State to the risk of war shall be sentenced to imprisonment of five to 12 years.
Article 313
Armed Uprising against the Government of the Turkish Republic
Article 313 – (1) Whoever incites the people to an armed uprising against the government of the Turkish Republic will be sentenced with imprisonment of 15 to 20 years. If the uprising occurs the inciting person will be sentenced to imprisonment of 20 to 25 years.
(2) Whoever directs an armed uprising against the government of the Turkish Republic will be sentenced to life imprisonment. The other participating person will be sentenced to imprisonment of six to 10 years.
(3) If the offences described in paragraph one and two are committed by taking advantage of the eases of the State being at war aggravated life imprisonment will be imposed.
(4) If other offences are committed when the offences described in paragraph one and two carried out punishment for these offences will be delivered separately.
The first sentence in paragraph 1 envisages the punishment of persons who incite to an uprising. The term “incitement” is broad and open to interpretation, which might lead to punishment of expressions of thought. Taken together with the practice in Turkey the possibility for broad interpretation is a risk for the protection of the freedom of expression. Since the offence is directed against a danger (possible threat) this risk will be inevitable.
It was suggested to replace the term “incitement” in the first paragraph with “giving directives”. The provision should be reworded and only be directed against uprisings that have materialized.
Even if paragraph 1 is deleted completely the offence of conducting an uprising will still be punished. In such a situation the person directing the uprising will be punished according to the general provisions of the penal code.
Actually, Article 312 TPC already provided for the sufficient and necessary protection of the government. In that sense the provision of paragraph 2 has been included in many similar provisions in order to create an area of prohibition. The Article should be changed to the following wording:
Armed Uprising against the Government of the Turkish Republic
Article 313 – (1) Whoever gives directives to the people for an armed uprising against the government of the Turkish Republic will be sentenced to imprisonment of 20 to 25 years, if the uprising occurs.
(2) Whoever directs an armed uprising against the government of the Turkish Republic will be sentenced to life imprisonment. The other participating person will be sentenced to imprisonment of six to 10 years.
(3) If the offences described in paragraph one and two are committed by taking advantage of the eases of the State being at war aggravated life imprisonment will be imposed.
(4) If other offences are committed when the offences described in paragraph one and two carried out punishment for these offences will be delivered separately.