Human Rights Agenda Association’s Opinion and Comments on the Turkish Penal Code

As known and observed by many, the legal system has been going through a significant process of renewal in recent years. In this process, a spectrum of legal norms ranging from 1982 Constitution to the directives of the Ministry of Justice have gone through fundamental change.

This has been a fast moving process. Hence the theoreticans and the practitioners of the issue had the opportunity to examine in detail neither the regulating administrative porceedings which at first appeared insignificant but made a much bigger impact on implementation nor the constitution which is considered to be the most important legal document at the top of the hierarchy of legal norms.

As Human Rights Agenda Association in order to contribute to the overcoming of the weaknesses, we aimed to identify the aberrations in the articles of Turkish Penal Code (TPC) from international human rights standards and present them to the attention of the public opinion. As a first step we have identified forty problematic articles and listed our opinion and suggestions below.

A Brief History:
1926 dated TPC through the changes of last eighty years remained as a much critised legal document in terms of human rights provisions. It was based on the “Zanardelli Code” which was a 1889 dated reference legal document reflecting the democratic and liberal climate of its day. Yet through the changes especially of 1930s, the Turkish Penal Code lost its liberal and democratic character and after 60 or 70 amendments it moved away from its source document, not reflecting the contemporary human rights standards anymore. The “legal reform” process which was taken up and accelerated later on with the ideal of entering the European Union comprised some troubles as well.

Law commissions set up in the early 80s have continued their work until 00s. The commission which was contributed by almost all academics of Criminal Law in some aspect, has concluded its work in 2001 and presented its draft law to the public opinion. Nevertheless the fact that there are only fourteen professors of Criminal Law in Turkey partly explains the length of time consumed to prepare the draft law and it also gives an idea on whether the people who were capable of realising the reforms were provided with adequate means. For the  members of the commission had to manage the commission work alongside their jobs at the universities and the judicial institutions instead of leaving their jobs to concentrate on the draft law as it would happen in modern countries.

Yet the draft law finalised in 2002 was pushed aside by the new government and a new draft was prepared. The second draft was presented to the public in late 2003. The draft was opened to discussion during 2004, but any detailed analysis of the draft law could not be or was not produced in a year’s time. Finally the law was passed through the parliament on 26 September 2004. The date of entry into force was announced to be 1st. of April 2005 at first but due to criticisms it was postponed to 1st. of June 2005. The Turkish Penal Code entered into force at that date.

We would like to point out that we agree with the opinion frequently expressed in the literature of Criminal Law over the last year, that the new Turkish Penal Code (Num. 5237) has full of systematic, contextual and linguistic weaknesses. Above all the law is prone to lead to unpredictable problems in the future since it has neither been analysed in detail nor tested by judicial decisions.

In order to contribute to the analysis of the code which was not accomplished at the time of its preparation, focus on the provisions that restrict freedom of expression in Turkey and provide a legal vision on the articles much debated and speculated about in recent months, we have prepared the project of “Reform in Turkish Penal Code for Human Rights.”

We have first selected fourty articles which stood out most. We set up a “working group” to examine those articles. You can find below the opinion of the working group on the articles. When more than one opinion were reached on an article they are added at the bottom.

One of the most important aims of our work is to open the law to discussion. We think that these discussions would form the first steps towards identifying the weaknesses and remedying them. As we share our opinion with the public we believe that you would share your opinion with us.

Yours faithfully…

Human Rights Agenda Association
TPC Project Working Group