Reform the Penal Code for Human Rights / Group 6 – Analyzing of The Articles of The Penal Code
Section 6: Offences against National Defence
Discouraging people from performing military service
ARTICLE 318 – (1) Those who instigate, recommend or spread propaganda to the effect of discouraging people from performing military service shall be sentenced to imprisonment of six months to two years.
(2) If the act is committed through press and publications, the penalty shall be increased by one half.
First Opinion
The right to conscientious objection is protected by international law and according to Article 18 of the International Covenant on Economic, Social and Cultural Rights it is a human right. In many member States of the European Union the right to conscientious objection has been granted.
For actions and articles on the right not to perform military service that is also known in its short form as CO (conscientious objection) many people have been tried in the past and sentenced according to Article 155 old TPC.
The provision is a product of a militarist approach and giving an opportunity for broad interpretation very dangerous result can stem from it. The implementation of the current provision and the use of the previous provision to the same effect have made this absolutely clear.
Mehmet Tarhan, who previously had declared not to perform military service, was arrested in April 2005. He was taken to a military unit and on charges of “insisting on disobeying orders” he was put in Sivas Military Prison. Despite comments of Ö. Farik Eminagaoglu, prosecutor at the Court of Cassation and Osman Can. Rapporteur at the Constitutional Court to the effect that conscientious objection was part of the freedom of conscience as provided in the Constitution and that not military but service for the fatherland could be obligatory the local court made no reference to such a right and sentenced him to four years’ imprisonment. In addition, Mehmet Tarhan, who was imprisoned in violation of the freedom of expression, was subjected to ill-treatment.
Birgül Özbaris, journalist of the daily “Gündem” was charged three times with Article 318 TPC for news on COs. The articles appeared in September and October 2005 and the relevant trials are continuing.
In the indictment against Saruhan Oluc, deputy chairperson of the Freedom and Solidarity Party (ÖDP), who was tried at the Military Court of the General Staff under Article 155 old TPC and later sentenced to two months’ imprisonment for an article with the title “Let’s be a soldier”, the following arguments were presented:
“… In the military obedience to the hierarchic structure and the submission to the violence of the superior(s) is taught. This is placed in the minds to be in effect during the life after military service. This is meant by ‘getting a man’ or ‘losing unpolished manners’. The military units are the places to produce human beings in line with the existing system and – if necessary – get their final shape with violence…”
Since according to Article 90 of the Constitution international covenants are part of the Turkish legal system and verdicts of courts such a provision in law is displace in light of Article 18 of the International Covenant on Economic, Social and Cultural Rights and Articles 9 and 10 of the ECHR.
Apart from the declaration of CO any kind of expression against the war or for peace can be subjected to prosecution under this provision and result in punishment.
This provision is a serious threat to freedom of expression and should be cancelled altogether. In addition, the right to conscientious objection has to be protected and the possibility for alternative services such as social work has to be introduced.
Instigation of military personnel to disobedience
ARTICLE 319 – (1) Those who induce or incite military personnel or other persons holding office under the authority of the military administration to disobey the laws or to break their oaths or to violate military discipline or their duties relating to military service and those who, in front of military personnel, praise or state that they approve of actions which violate the laws or oaths or discipline or other duties shall be sentenced to imprisonment of one to three years.
(2) If the act has been committed in public, imprisonment of two to five years will be imposed.
(3) If the act has been committed in wartime, the penalty shall be doubled.
According to the military penal code soldiers are punished for disobedience of orders. The provision in the penal code is directed against civilians for two kinds of acts.
It is possible to punish disobedience with existing provisions. There was no need for a separate provision for soldiers. This is a reflection of the holy value attributed to the armed forces. In such a situation the existence of incitement can only be accepted, if the offence materializes. Under general provisions it is possible to punish the person as the one giving directives.
In military units it is common that the soldiers are educated in a way that they will not be affected by appraisal of counter activities. At least the discipline and their relatedness should have been developed on this level.
The provision is directed against a danger and aims at prevented negative statements on the armed forces. This kind of preventive measures that makes it impossible to comment on “soldiers” cannot be included in the scope of freedom of expression. In a democratic society it should be possible to criticize any institution of the State including the soldiers and the army. The term of publicly committing in paragraph is directed against sharing ideas with others and is aimed at exerting pressure on the expression of thoughts.
Therefore, the formulation of “induce or incite or in the front of soldiers praise or state that they approve of actions against the laws, oaths or discipline or other duties” should be cancelled and replaced with “who urges to”. Thus, the offence would not longer be an offence of danger. The second paragraph should be skipped altogether.
The text of the provision would be:
ARTICLE 319 – (1) Those who urge military personnel or other persons holding office under the authority of the military administration to disobey the laws or to break their oaths or to violate military discipline or their duties relating to military shall be sentenced to imprisonment of one to three years.
(2) If the act has been committed in wartime, the penalty shall be doubled.
Dissemination of false information in wartime
ARTICLE 323 – Whoever disseminates or broadcasts unfounded or exaggerated news or information or information which is intended for a specific purpose in a manner which causes public concern and alarm or shakes the morale of the people or reduces the country’s resistance against the enemy or who carries out any activity which could damage fundamental national interests in wartime shall be sentenced to imprisonment of five to ten years.
If the act has been committed
1. through propaganda,
2. towards military personnel,
3. as a result of an agreement with a foreigner,
the penalty shall be imprisonment of ten to twenty years.
(3) If the act has been committed as the result of an agreement with the enemy, life imprisonment will be imposed.
(4) Whoever carries out actions aimed at to bring lowering the value of foreign exchange or to influence the value of public bonds in a manner that will confront national resistance against the enemy with a danger in wartime shall be sentenced to imprisonment of five to ten years and to a judicial fine of up to three thousand days.
(5) If the act referred to in the fourth paragraph has been committed as the result of an agreement with a foreigner, the penalty shall be increased by one half, and if it is the result of an agreement with the enemy the penalty shall be doubled.
First Opinion
As stated in the reasoning for the provision exaggerated news or news based on a special purpose is actually correct information. It cannot be accepted that correct reporting or the declaration of truth is counted as an offence. With the formulation “any kind of activity that may harm the basic national interests” an offence of danger was created.
The term of “basic national interests” is very dilatable and open to interpretation. Depending on existing conditions and the approach of the applicator of law any kind of activity can seen as directed against the “national interest”. In addition, the sentence imposed for an unspecified offence is very high and not proportional.
The term of “providing or disseminating news” is obviously directed at the press. From the case law of the ECoHR it is clear that anyone who holds a certain opinion also has the right to use means to spread this idea.
Even if the subject touched upon by this provision is very sensitive, very high sentences for offences described in dilatable language can easily lead to a violation of the freedom of expression. Therefore, dilatable terms sich as “national interests” should be deleted and the provision should be reworded with lower sentences.
Obtaining information relating to State security
ARTICLE 327- (1) Whoever obtains information that because of the security of the State, internal or external political interests or because of its nature has to be kept secret shall be sentenced to imprisonment of three to eight years.
(2) If the act has been committed in wartime or has endangered the State’s preparations for war or effectiveness in war or military movements, the penalty shall be life imprisonment.
Disclosure of information relating to the security and political interests of the State
ARTICLE 329- (1) Whoever discloses information that because of the security of the State, internal or external political interests or because of its nature has to be kept secret shall be sentenced to imprisonment of five to ten years.
(2) If the act has been committed during war or has endangered the State’s preparations for war or effectiveness in war or military movements, imprisonment of ten to 15 years shall be imposed.
(3) If the act has been the result of negligence on the part of the perpetrator, the latter shall be sentenced to imprisonment of six months to two years in the case referred to in the first paragraph and three to eight years if any of the cases referred to in the second paragraph exist.
Disclosure of classified information
ARTICLE 330 – (1) Whoever, for the purpose of political or military espionage, discloses information that because of the security of the State, internal or external political interests or because of its nature has to be kept secret shall be sentenced to life imprisonment.
(2) If the act has been committed during war or has endangered the State’s preparations for war or effectiveness in war or military movements, aggravated life imprisonment shall be imposed.
Obtaining prohibited information
Article 334 – (1) Whoever obtains information that has been prohibited by the competent authorities through laws or regulatory procedures and whose nature requires it to be kept secret shall be sentenced to imprisonment of one to three years.
(2) If the act has been committed during war or has endangered the State’s preparations for war or effectiveness in war or military movements, imprisonment of five to 10 years will be imposed.
Disclosure of prohibited information
ARTICLE 336- (1) Whoever discloses information that has been prohibited by the competent authorities through laws or regulatory procedures and whose nature requires it to be kept secret shall be sentenced to imprisonment of three to five years.
(2) If the act has been committed during war or has endangered the State’s preparations for war or effectiveness in war or military movements, imprisonment of ten to 15 years will be imposed.
(3) If the act has been the result of negligence on the part of the perpetrator, the latter shall be sentenced to imprisonment of six months to two years in the case referred to in the first paragraph and of three to eight years in the case referred to in the second paragraph.
Disclosure of prohibited information with the purpose of political or military espionage
Article 337 – (1) Whoever with the purpose of political or military espionage discloses information that has been prohibited by the competent authorities through laws or regulatory procedures and whose nature requires it to be kept secret shall be sentenced to imprisonment of 10 to 15 years.
(2) If the act has been committed during war or has endangered the State’s preparations for war or effectiveness in war or military movements, the sentence will be aggravated life imprisonment.
Possession of documents concerning the Security of the State
Article 339 – (1) Whoever is caught with documents or any other thing of that quality suitable to obtain information that because of the security of the State, internal or external political interests or because of its nature has to be kept secret or who cannot show an accepted reason for possessing them will be sentenced to imprisonment of one to 5 years.
(2) If the act has been committed during war, the sentence will be three to eight years.
327,329,330,334,336,337,339
Articles 327, 329 and 330 concern sentences to be imposed on persons who obtain, disclose (with the intention of political and military espionage” information that because of the security of the State, the internal or external political interest or their characteristics have to be kept secret.
Articles 334, 336 and 337 concern sentences to be imposed on persons who obtain, disclose (with the intention of political and military espionage” information that the official institutions or laws and regulations have prohibited or that because of its nature has to be kept secret.
The provisions do not mention any person to qualify the nature of information that requires secrecy. The provisions enable charges based on interpretation. It should be remembered that cooperation of foundation with foreign institutions was qualified as espionage and court cases were initiated in these charges.
Leaving aside the fact that the separation of provisions that because of legal systematic should have been kept together the common feature of all Articles is that they refer to information that has to be kept secret. The definition and limits of the elements remain unclear. Without any reason the groups have been divided according to secret information for the interest of the State and information prohibited by the competent authorities. The gathering and disclosure of information that is not prohibited can become a crime. This is against the principles of lawfulness of crime and sentences.
In order to accept an action as an offence it has to be foreseeable. Against this obligation Articles 327, 329 and 330 provide for an opportunity to punish information that at the time was not prohibited, but can be subject to the interpretation of a person.
The Articles 334, 336 and 337 carry similar dangers and speak of prohibited information according to regulative measures. It is not possible and appropriate that State secrets are determined by regulative measures. In addition, the public is still occupied with something like the “Red Book” that officially does not exist.
Article 339 provides for penalties if someone possesses documents that can be used to obtain the information described in the previous six Articles. This Article contains the same danger as to the definition of information. In addition, to obtain and disclose such information is already an offence and, therefore, there is no need for such an additional provision. Expressions such as acceptable reason or statements of any other kind are not suited for law.
It would have been possible to clarify these subjects in the Law on State Secrets instead of including them in the penal code. In the draft Law on State Secrete penal provisions are included.
We believe that the aforementioned provisions should completely be taken out of the pencal code. Until the special laws are passed the information that has to be kept secret must be defined and regulations could be made according to the degree of secrecy required for certain information.