Reform the Penal Code for Human Rights / Result of The Workshop In Diyarbakır on The TPC

THEOUTCOMES OF THE DIYARBAKIRWORKSHOP ON TURKISH PENAL CODE (TPC) PROJECT

The Diyarbakırworkshop took place at the conference hall of the Diyarbakır Bar AssociationEducation Centre on July 22-23, 2006. On the first day of the workshop 11, onthe second day 9 participants made their contributions. The workshop waschaired by Lawyer Tahir Elçi, Deputy President of the Diyarbakır BarAssociation. The workshop commenced with the opening remarks of Günal Kurşun,the Project Co-ordinator, who introduced the Association and the Project underdiscussion. It was stated that in this project, selected forty articles of theTPC would be analysed on the basis of “freedom of expression”; thatcommon provisions need to be analysed separately, individual provisions thoughcontain clauses which directly or indirectly violate freedom of expression.

In the course of the workshop, the method ofsmall group-big group was adopted. Prior to the start of the work on the groupsof articles, all participants were first divided into two small groups. Eachsmall working group for some time studied over various articles belonging tothe same group of offences. Then small groups came together in order to formthe big group and each small group presented the articles it previouslyexamined to the whole group of workshop participants. The Diyarbakır workshopwas the forth and the last one in a series of workshops organised under this particular project. The courseof the discussions at Diyarbakır workshop was in coordination with the resultsof the discussions of the first three workshops in Izmir, Ankara and Istanbuland so the debates started with the sixth group of offences and then offenceswithin the second and forth groups were examined.

Discussions were not carried out with a purposeof reaching a common consent at the end; rather all types of views wereencouraged to be expressed  freely at theworkshop. At some points, consensus  cameautomatically; then these particular points were examined separately and inthis text, they are marked with bold. Theitems over which there was no common consent are recorded below.

Below, you will find the summaries of thediscussions on the sixth, second and forth groups respectively. This patternreflects the order of the discussions. All views expressed in due course arelisted one by one. If there was a common consent among the participants on aparticular issue, then this is specially marked underneath the related article.

6^th Group of Offences:

Article 318-Discouraging people from performing military service

• It is not all clear what the acts of instigation, recommending and spreading propaganda exactly are; they need to be explained.
• There are no requirement for the existence of concrete conditions, it contains vague statements only.
• It contradicts with actual law as it is the case with Perihan Mağden instance. It creates a serious obstacle for freedom of expression.
• Regulations concerning the military affairs are, at any rate, determined by the other related laws. Duplication of the same topics under the TPC is therefore unwarranted.
• It has an obstructing impact on the call for peace which everybody has the right to ask for.
• It openly contradicts with Article 10 of the European Convention on Human Rights and other international documents, because there exists no legitimate interest that is actually in need of protection. This article is a product of a militarist approach.

• Alternative services may well be offered for those who do not want to enter under arm (e.g. to serve in other state departments); it should be clearly explained what actions will be deemed an offence.
• It contradicts with the prohibition of forced services in the Constitutions.
• Serving in the army is no longer a compulsory service throughout the civilised world.
• Serving in the army is, in the last resort, a type of public service. One should also have the chance to be able to criticise this particular type of public service as freely as making a speech criticising public transport system.
• The article should be omitted altogether.

 Article 319-Instigation of military personnel todisobedience

• The article makes no distinction between military personnel and the civilians.
•  The offence should be classified as a damaging offence not as a threatening offence.
• The wording of the article does not correspond with the reasoning behind it. Actions foreseen by the reasoning of this article are already subject to penalties under the provisions of the Military Penal Code.
• There are two separate offences in this article. According to the first one, it will be an offence even to ask “why the hair of soldiers cut so short?” or “why do they wear hat everyday?”
• As to the second one, it has no meaning at all.
• The article which is in connection with Article 318 should be cancelled altogether.

Article 323- Dissemination of false information in wartime

• It is not clear what it means by “fundamental national interests”
• It contains the elements of anxiety and panic; however it is unclear whose standards would be used in assessing these elements.
• The clause of ‘in agreement with the enemy’ has been already cited in other articles.
• 4^th paragraph seems to be irrelevant with the article.
• No connection is actually maintained between the value of foreign currencies and putting national resistance in danger.
• In this article, dissemination of only unfounded information and information that serves for a particular purpose are punished. Other offences apart from these would damage people’s right of security.
• The first paragraph should be altered as “the person who, in times of war, disseminates or passes unfounded news or news which serves for a specific purpose in a manner which causes public concern or lowers the resistance of the country against the enemy…”

Sentencea) of the 2^nd paragraph should be deleted while the sentences b) andc) should be preserved as they are.

3^rdParagraph should be preserved as it is.

4^thand 5^th paragraphs are completely irrelevant.

Article 327- Obtaining Information Concerning the State Security

• The phase of “state security” is far too vague.
• The phase of “internal and external political interests” should be omitted from the text of the article.
• It should be explained what it means by ‘obtaining’
• The act of obtaining in all its extent is punished by this article. For example, those who obtain but do not disclose the information will also be punished.
• It contradicts with the Public Information Act.
• Article 47/4 of the Code of Criminal Procedure (CCP) grants the full authority to the President of the Republic himself to decide upon the gravity of the secrecy of an information.  Thus, if a court could not arrive at any decision at all cases , then it could apply to the President.
• The situation in Article 47/7 of the CCP arises only when the testimony of the President is required.

A common deliberation on articles 327, 329, 330, 334, 336,337 and 339

• The meanings of the concept of ‘state security’ and as well as of the concept of ‘internal and external political interests’ may well shift with the conjuncture of the country at a given time. In order to define these concepts properly, the substance should be described in accordance with objective criteria.
• From the standpoints of the definitions of the concepts and of the wideness of the gap between the minimum and maximum limits of the sentence, the judicial discretion granted to the magistrate is broad beyond reason.
• When the substances of all these concepts are properly described, a separate act of legislation will be required.
• It is not clear which office and/or institutions are responsible with the task of determining the substances of the concepts and their nature of ‘secrecy’
• When this is article is considered in relation with Article 47 of the Code of Criminal Procedure the office which would be responsible in determining the substances of the concepts for the cases already referred to the judicial process, would be the court. This will likely cause debates regarding the independence  of the judges especially when a case which is likely to affect the political scene of the country is before a court.
• Because of the vague definitions of the concepts cited within the article, it becomes possible to  conceal many issues by classifying them as ‘secret’.  The task of the state in informing the public is thus blocked as it would be possible to hide some operations from the people; also the Opposition might be silenced by means of this excuse; it also contradicts with the right of expression.
• Violations of rights increase in general, when the issue of security is utilised as a justification.  This altogether creates a risk.
• To disclose a sensitive information should be a less serious action in view of the efforts consumed in order to obtain the secret information; however in article 329 the sentence demanded for the former is higher than the one for the latter; this contradicts with the principle of proportionality.
• Article 327/2 and 329/2 contradict with each other, as penalties for the qualified cases of both offences should be proportional and close compare with  sentences contemplated for ordinary cases. Still, the sentence proposed for the act of obtaining sensitive information at times of war  is life-imprisonment while the act of disclosing the information of the same nature at times of war is sentenced to 10 to 15 years of imprisonment.
• The same arguments apply for the other articles in this section.

 2^nd Group of Offences:

Article 214-Incitement to commit an offence.

• The terms of ‘openly incite to commit an offence’ is rather vague.
• Some sort of  damage should occur as a result of the incitement.
• It violates the right of expression of thought
• The term ‘armed’ in the 2^nd paragraph is unclear; it could also badly affect the right to think.
•  This article should be kept for issues like infant pornography.
•  This article could well be interpreted correctly in countries with a deep-rooted judicial tradition, yet in countries with not-so-strong judicial tradition like our country, it tends to produce wrong interpretations.
• The article should be cancelled.
• The article should remain.

Article 215-Praising an offence and an offender

• The article should be deleted completely.
• The article is of value when there is a final judgement, in particular. It should be maintained as the former 312/2.

Article 216-Incitement of the public to hatred and enmityor humiliation

• The first opinion of the working group is correct. It would be enough if the act of humiliation only is to be retained as an offence.
• The element of materialisation of ‘obvious and imminent threat’ should be demanded within this article.
• The first paragraph of the article should be deleted altogether.
• The first sentence of Article 218 should be added to Article 216. The section on incitement  and the article should be kept intact.
• Some criteria should be added to the article. For example, philosophy, belief, sexual orientation etc.

Article 217- Incitement not to abide by law

• The article should be cancelled completely.
• The article should be kept intact.

Article 218- Common provision

• The article should just be attached as a supplementary paragraph to the act of humiliating referred to in Article 216.
• The article should be preserved as it is.

Article 219- Abusing religious services in the course ofduty.

• The article restricts freedom of expression.
• Some acts which are deemed an offence by this very article are, at any rate, classified under the heading of the offence of abusing official duty, too.
• The wording of ‘and/or’ while referring to the punishment in the first paragraph is incorrect. The word ‘and’ should be replaced by ‘or’.
• The first paragraph should be omitted altogether.
• The phase of ‘by making use of his title’ in the second paragraph is a vague expression.
• Religious workers are influential and trusted people outside of their work, too.
• Disqualification from all official duties for life is a rather disproportional punishment.
• The second paragraph should be removed altogether.
• The third paragraph should be preserved after some alterations. The suggested alteration is as follows: “Religious official who, by means of his official titles, abuse the religious feelings of the people and forces and convinces them to act contrary to the law … shall be punished’
• In view of the offence of abusing official duties, the forth paragraph should be deleted.
• The fifth paragraph is a duplication. It should be omitted. 

Article 220- Forming an organisation for the purpose ofcommitting offence

• This article and Article 314 are linked with each other in a common/private context. There were some criteria imposed by the Turkish Supreme Court in relation with the former Article 168. For example, even if an organisation is armed, “the capacity to carry out country-wide actions” was previously a condition.
• The meaning of making a special reference in the article to the number of members is unclear.
• Even before committing an action which is not yet accepted as an offence, the existence of a consent relating to the commitment of this particular action alone is subjected to a penalty.
• The meaning of ‘being a member of an organisation’ should be clearly explained.
• Paragraphs 6 and 7 contradict with both the principle of personal liability in punishment and the sentiment for justice.
• These situations could well be used as a reason to aggravate the sentence.
• The phase ‘making propaganda for the objectives’ in the 8^th paragraph is faulty. The objectives of an organisation and those of individuals might well match with each other. The element of ‘making propaganda for the objectives’ should be deleted altogether.

Article 222- Hat and Turkish Characters

• The article which has long been obsolete should be cancelled altogether.

4^th Group of Offences:

Article 300- Insulting the Symbols of the State Sovereignty

• The article should be preserved without any change.
• The second paragraph of the article should be deleted.
• The second paragraph of the article should remain.
• The third paragraph of the article should be removed.
• The meaning of the term of ‘symbol of the state sovereignty’ is unclear; it should be expressed clearly.
• Except for the first paragraph, all paragraphs of the article should be omitted.

Article 301- Insulting Turkishness, the Republic, theinstitutions and organs of the State

• The article should be cancelled altogether.
• The second paragraph alone should be revised through substitution of legislative, executive and judicial organs; the rest of the paragraphs should be deleted.

Article 341-Insulting the flag of a foreign state

• When an act is committed in order to deliberately insult the flag, this should be regarded as an offence.