New TCK under spotlight of lawyers


Friday, October 27, 2006
Serdar Alyamaç
İZMİR – Turkish Daily News

The Human Rights Agenda Association, the only human rights association based in Izmir, has published a booklet called Freedom of Expression in the New Turkish Penal Code under a project titled Reform the Penal Code for Human Rights, which points out some mistakes in the new Turkish Penal Code (TCK) and how they can be fixed. The TCK is nowadays a very popular issue because of the cases brought against writer Elif Safak, Nobel Prize winner Orhan Pamuk and journalist Hrant Dirink.

The president of the Human Rights Agenda Association, Orhan Kemal Cengiz, explaining the aim of the booklet to the Turkish Daily News in anexclusive interview, said: The content of this work intends to demonstrate that problematic legal provisions underlie the restrictions on freedom of expression. We tried to show this by drawing attention to specific points of concern in the TCK.

The booklet also deals with the way draft laws are developed. In Turkey legislation is usually passed without consulting the views of civil society, Cengiz said, and added: We wish that the government, before introducing the TCK as law, had asked NGOs, bar associations, journalists and intellectuals for their views on it. The booklet you hold in your hands is an attempt to show what the penal code might have looked like if there had been a system of genuine consultation.

Cengiz said that despite the important steps taken in certain human rights areas, standard practice in Turkish courts has not changed. The prosecution of writers, artists and journalists who have expressed their non-violent opinions is an everyday occurrence. For this reason, domestic and international organizations that closely monitor the situation inTurkey have reached the common conclusion that human rights problems in Turkey cannot be solved by legal changes alone and that minds must also change.’Genuine progress cannot be achieved without a change of mentality. If we lookat the historical record of the judiciary in Turkey, we see an unfortunate pattern — laws are interpreted in such a way as to narrow rather than broaden freedoms, and the values of the sacred state’ take precedence over the freedoms of the individual.

The conservative interpretation of law in Turkey is so extreme that some words and ideas are applied in a manner that directly contradicts common contemporary understanding of the terms in question, said Cengiz. For example, the prohibition of hate speech (which does exist in several European countries) from Article 312 of the former TCK andArticle 216 of the new TCK are hardly ever used to stop speeches inciting hatred against religious and ethnic minorities in Turkey (which are common). Ironically, these provisions are instead used to criminalize any expressions that acknowledge the actual existence of certain minority groups in Turkey. With such reflections in mind, the booklet was prepared to give guidance inachieving a practical path between these questions and the law. An examination of the work will show that freedom of expression problems in Turkey stem not only from narrow interpretations or from specific provisions such as the Law to Fight Terrorism; Turkish law as a whole is riddled with freedom of expression issues and difficulties.

Givin details about the booklet, Cengiz said, The TCK contains at least 40 provisions; Articles 125, 126, 132, 214, 215, 216, 217, 218, 219,220, 222, 225, 226, 237, 239, 260, 277, 285, 286, 288, 298, 300, 301, 304,305,306, 313, 318, 319, 323, 327, 329, 330, 334, 336, 337, 339, 341. These articlesin the new penal code contain many provisions; from insult, violation of the privacy of communication, incitement to commit an offense, praising offenses and offenders, inciting the population to enmity or hatred and denigration, incitement to disobey the law, revealing confidential commercial, banking or customer information, insulting the symbols of state sovereignty to insulting Turkishness, the republic, the organs and institutions of the state. These provisions have the potential to restrict freedom of expression, and there is a risk that these provisions may be applied on a wide range of issues in social life.

Cengiz stated that the views expressed in the booklet were those of the Human Rights Agenda Association but that they have been reached bytaking into consideration the opinions and views of hundreds of people in an attempt to find a consensus. We hope that this study will provide a new perspective for the general public on freedom of expression in Turkey and be an inspiration for our legislature. Finally, we want to emphasize that this work could never have been conducted without the contributions of many people and institutions. I commend this study in the hope that it will provide a new perspective and open fresh horizons for all those interested in the subject. Headded that they had received financial support for the project by the National Endowment for Democracy.

In the introduction of the booklet it says: It is now well known that Turkey’s legal system has been going through a significant process of renewal in recent years. In the course of this process, there has been a spectrum of fundamental change in legal standards ranging from the 1982 Constitution right down to Ministry of Justice directives. This has been a fast-moving process, and as a consequence, theoreticians and practitioners in the field have not yet had an opportunity to examine in detail the regulatory administrative provisions. This at first sight seems insignificant but it has had considerable impact on implementation. Nor have they been able to give a sufficient evaluation of the Constitution, generally considered the most important legal document of the legal hierarchy. The new TCK stands among these documents as another text that has not received the scrutiny it deserves. To remedy this short coming the Human Rights Agenda Association has tried to identify some short comings of the TCK in the light of international human rights standards. As a first step, we have identified forty problematic articles and present them below, together with our opinions and recommendations.

We would like to express our agreement with the opinion frequently expressed in the literature of criminal law over the past year thatthe new TCK (Statute No. 5,237) is full of systematic, contextual and linguistic shortcomings. Since the code has never been analyzed in detail, ortested by judicial decisions, it is likely that these shortcomings will give rise to problems in the future. In order to contribute to a belated analysis ofthe code, to focus on those provisions that restrict freedom of expression inTurkey, and to provide a legal perspective on individual articles that havebeen much debated and criticized in recent months, we launched a projecten titled Reform the Turkish Penal Code for Human Rights.’ As part of this project, we first selected the 40 most problematic articles. We then set up a working group with a project coordinator and five lawyers. Their views can be found on our Web site In February 2006, we held a workshop in Izmir. We held one in Ankara in March, in Istanbul in May and in Diyarbakir in July. The results of these workshops were drawn together to form this booklet. One of the most important aims of our work was to open the law for discussion. We hope that that this booklet will be a first step toward identifying the shortcomings and errors in the arguments arising from that discussion. As we share our opinion with the public, we trust that you will share your opinions with us.

A brief history of Turkish Penal Code: The first TCK was introduced in 1926 and has gone through considerable changes in the 80 years since, but despite the changes it has remained a much-criticized legal document for its failings in terms of human rights. It was based on the Zanardelli Code from 1889 and reflected the democratic and liberal climate of its day. Yet, as a result of 60 or 70 amendments, and particularly those introduced in the 1930s, the TCK lost the liberal and democratic character of its source and ultimately fell far short of contemporary human rights standards. The legal reform process of recent years, which accelerated with the aspiration of entering the European Union, also created some problems. A law commission set up in the early 1980s to reform the code continued its work into the new millennium. The commission, in which almost all criminal law academics participated to some extent, concluded its work in 2001 and presented a draft code to the public.

The fact that there are still only 14 criminal law professors in Turkey explains in part why it took so long to prepare this draft code and also gives some idea of the scarcity of resources available to such individuals. The commission members were obliged to manage the preparation of the code alongside their work in universities and judicial institutions instead of taking a leave of absence from their jobs to concentrate on the bill as it was supposed to be.

Yet the bill finalized in 2002 was pushed aside by the new government, and a new bill was prepared. The second bill was presented to the public in late 2003. The bill was opened to discussion throughout 2004, but no detailed analysis of the bill was produced during that year. Finally, Parliament enacted the code on Sept. 26, 2004. The new TCK was supposed to be introduced on April 1, 2005, but in response to criticism it was postponed. It finally came into force on June 1, 2005.