Reform the Penal Code for Human Rights / About Project
CAMPAIGN to “REFORM the PENAL CODE” for Human Rights
The lawmakers in Turkey are making important legislative amendments regarding human rights as part of the integration process into the EU. The new Penal Code number 5237 entered into force on 1 June 2005 as part of this process. Thus the former law (number 765) which was made in 1926, and had been amended infinitely during the last 80 years for not being democratical enough, finaly has been abolished. In the preperation process of the new law, it was initially aimed to be progressive, contemporary and in line with the necessities of a democratic society. Yet democratical participation into its preparation process was neglected which led the process away from its initial aims. The new Penal Code has certain partially more progressive clauses comparing to the previous one. Yet it has become clear that many old clauses, most importantly the ones concerning human rights have been kept and many new articles of the new law introduce new restrictions. Especialy with the ones on media, many important rights beginning with the right to have information, right to have opinion and right to share opinion and information are restricted. This has created dissatisfaction in different sections of the society.
Freedom of thought and expression are of fundamental importance in protecting all the other rights and freedoms. It is possible to protect all the rights and freedoms which are protected by European Human Rights Convention as well as other international conventions, only on the condition that the freedom of expression is secured. The new Penal Code number 5237 have many open or potential disadvantages concerning human rights. Therefore it has become obligatory to hold a through discussion on it and to work on reforming the law. With this project, restrictions on freedoms that the new law introduces, will be identified; wide sections of the public will be informed of the consequences of those restrictions; alternative law articles to the ones in need of amendment will be produced and those who make and implement the laws will be tried to be influenced in favor of human rights.
In the aftermath of the military cop in 1980 in Turkey, fundamental rights and freedoms were being frustrated, ranging from freedom of expression to the security of person. Writers, journalists, lawyers, politicians, members of trade unions as well as other members of the civil society in Turkey all suffered from draconian measures and uncalculated interferences with their fundamental rights and ended up in prisons, serving sentences which were given by unfair trials.
In the recent years, however, as a result of the integration process with the EU, Turkey has made a good progress in the field of human rights. In this process, many law, including ones which regulate criminal and penal matters, have been changed. Turkish Penal Code, Criminal Procedure Code and The Code of Execution of Sentences, for example, were all amended completely in 2005. These changes, however, have not always been in the right direction since the Government does not intend to take unequivocal and irrevocable positive steps but instead tries to satisfy EU demands. Therefore, these amendments are not holistic neither they are capable of compensating of the short comings of Turkish legal system. From the specific point of view of this project, these new laws in the penal and criminal sphere have introduced many positive changes whereas they have brought some draconian measures in freedom of speech and expressions, for instance.
Challenging against these negative changes is therefore extremely important to promote and protect human rights and democracy in Turkey.
III- GOAL and OBJECTIVES of the PROJECT:
It has become clear that the new Penal Code has not removed the restrictions over freedom of expression in particular and rights and freedoms in general, which are protected by European Human Righst Convention (EHRC) and other international conventions. This has been expressed in “2004 regular report of Turkey’s Progress towards joining the EU” with the statement “The new Penal Code has provided limited progress on freedom of expression. Certain clauses which have often been used to restrict freedom of expression and are in violation of article 10 of EHRC have been kept intact or with minor change.”
It has therefore become an obligation to open the new law to the discussion of members of legal profession and representatives of non-governmental organizations, in order to determine anti-democratical articles and produce alternatives.
In order to bring about a democratical change in the new law and raise awareness of the society, the project objectives are:
- Influencing the lawmakers: Encouraging the lawmaking body to give priority to the participation of public in the preparation process of the laws. Convincing members of lawmaking body to amend the Penal Code in line with the necessities of a democratical society and human rights. First, publishing a booklet which highlights the problems with the new law and its alternatives. Lobbying for the alternative draft laws.
- Influencing the implementers of law: Informing members of law courts about the alternative drafts through a web of members of legal profession and academics who will take part in the discussion over the drafts and argue them in court cases. Influencing the implementers of law to interpret the current law in favour of human rights and in line with the international human rights conventions, and influence them to take action to amend the articles which are in violation of those conventions.
- Creating Public Opinion: Identifying the articles of Turkish Penal Code that contradict contemporary legal principals, international human rights conventions and universal virtues of humanity, and opening them to public discussion and creating alternatives and raising public awareness thus influencing the body of lawmakers and the implementers of law. Developing collaboration with press and media members who are under the risk of being penalized under the new law. Getting the issue reported and discussed in the press and media.
IV- PROJECT ACTIVITIES:
- Initial Work:
A Law Working Group will be set up by five members of legal profession and intellectuals, who have the knowledge and experience of penal code and international human rights conventions.
Law Working Group will initially compile all work and opinion on the new Penal Code produced by academics, members of legal profession, human rights defenders, non-governmental organizations and intellectuals. The initial preparation of the Working Group will last for two months.
Under the light of compiled work and opinion the new penal code will be reviewed. The end results of this initial review and the compiled material will be published on a website, to be created.
Turkish Penal Code will be scanned from the standpoint of different sections of the society on the basis of freedom of thought, expression, religion, belief and right to organize. Problems will be identified and the articles which need amendment or removal will be determined.
Workshops will be organised in four districts. Members of Law Working Group as well as district representatives will take part in the review and assessment meeting based on the findings of the workshops.
The conclusions of the last workshop will be published as a booklet and the Working Group will take responsibility for that.
- Creating a Web page:
A web page will be created to discuss Turkish Penal Code as aimed by the project and to share criticism and alternatives.
A comprehensive section will be added to the current website of Human Rights Agenda Association (www.rightsagenda.org) instead of creating a completely new website. This seems better both in terms of publicity and costs.
The project will be introduced, and the goal and objectives will be explained in the web page.
Links will be created for the websites of bar associations and NGOs.
There will be a section where a compilation of opinion and reviews of the Penal Code, gathered by the Working Group will be presented. Thus under the light of findings in this section, the Penal Code will be opened up to discussion on Internet.
The aim of preparing a webpage is to make it possible for people from different professions living in different parts of the country to have access to the discussion and share their own views on the Penal Code thus creating an interaction of ideas among wide sections of the society.
The results of the discussion will be reviewed in workshop meetings.
3- Creating Publicity:
The support of the media and press is important in reaching the goal of the project. Thus a flow of information to the media will be created and those members of the media who are sensitive to the issue will be kept in contact constantly.
The work to inform the media will begin one month prior to the beginning of the project. Introductory documents presenting the objects, coverage and activities of the project will be sent to national and local media and press.
An introductory coctail will be held with the representatives of all national and local media institutions at the beginning of the project.
Members of media and press will be invited to the workshops.
The final report of the project will be presented to the media and press through another coctail meeting.
4- Regional Workshops:
Workshops will be organised in four districts between January 2006 and June 2006. There will be one workshop meeting in each region and it will last for two days.
To determine the participants of the workshops, regional bar associations and NGOs will be contacted at the beginning of the project.
Participants will be selected among academics, members of legal profession, intellectuals and representatives of NGOs who are experienced in human rights issues and penal code.
It is planned to have 15 participants for workshops in every region.
There will be two sessions, one in the morning and one in the afternoon for every workshop.
The project and its objectives will be introduced at the first session. The participants will be informed on the discussion taken place on the web page and its conclusions, the meeting will proceed to discuss the identified problematic articles of the law. In the last hour of fourth session conclusions will be reviewed and a resolution will be prepared.
The meeting will be organised according to the search conference method and all four meetings in different regions will be chaired by a specialist experienced in this method.
The project coordinator will also attend all meetings. His/her assistant or a member of the Working Group (a member of legal profession) will be present as well at the meetings.
The goal of the workshops is not to produce new provisions for the new Turkish Criminal Cose For such a task a very long working period and detailed technical work are needed.
The main goal of the Project is to identify parts of the law which need amending and to explain the reasoning of amendments, plus to develop alternatives to replace the parts need removing and again explain the reasoning behind it.
5- Review and Assessment Meeting:
A review and assessment meeting will be held to evaluate and integrate the conclusions of regional meetings.
The meeting will take place at the end of June and will be attended by two representatives from each region who previously took part in the regional meetings, as well as the Law Working Group.
Search conference method will not be used at this meeting. On the first day of the meeting at first session, resolutions of regional meetings will be reviewed and categorized and then the participants will be divided up into groups and there will be a division of work. In the afternoon session the groups will work independent of each other on the shared articles.
The last hour of the first day will be used for assessment, and in this section, the groups will bring their work together. On the second day of the meeting in the morning session groups will carry on working indepentendtly. In the afternoon session of the second day all work will be brought together and the final evaluations will take place.
The Law Working Group will write a report on the basis of the resolutions of this last meeting and it will be printed as a booklet.
5- Preparing the Booklet and Publicity:
Suggested amendments to the current law which would be produced as a result of this work, will be presented at a press conference thus informing public about the problems and solutions, creating public support.
Publicity will help drawing attention to the booklet, attracting the attention of targeted groups to read and review the booklet and alternatives it proposes.
Furthermore the booklet will be distributed to members of the parliament, members of supreme courts and other related persons and institutions as well as international and national NGOs.
V- ASSESSMENT PLAN
It is planned to prepare and present quarterly reports during the course of the porject. At the end of the project both narrarive and financial reports detailing the costs will be presented.
In order to measure the effect of the Project, it is planned to
- Scan press reports of the project both in terms of quality and quantity,
- Follow how the outcomes of workshops are reflected in the Parliamentary debates and motions.
VI- ORGANISATIONAL BACKGROUND:
Human Rights Agenda Association (HRAA) was set up in Izmir in 2003 by prominent human rights defenders coming from all parts of Turkey with the purpose of working in both Turkey and abroad. HRAA, which sees human rights as a value on and above all political ideologies and concerns, believes that human rights may be promoted provided a deep understanding is developed as to the sources of the problems and on condition that new tactics and strategies are being developed to tackle these problems. HRAA categorically refuses every kind of violence regardless the identity of the author and no matter what kind of justification he/she raises. In this vein, HRAA condemns human rights violations which are committed by armed opposition groups as well as those committed by the states.
Although it is relatively new, it is relatively newly established, HRAA is an experienced NGO owing to our distinguished members including, but limited to, former president of Mazlum-Der (Mr. Yilmaz Ensaroglu), former and current presidents of Amnesty International Turkey branch (Mr. Mehmet Nur Terzi and Mr. Levent Korkut respectively), vice president of Diyarbakir Bar Association, Mr. Tahir Elci, spokesman of Human Rights Committie of the Parliament, MP Faruk Unsal, and our president Mr. Orhan Kemal Cengiz, former consultant of Kurdish Human Rights Project in London and former director of Izmir Bar Association Human Rights Center.
HRAA is currently is engaged in intensify education programs for lawyers focusing on the implementation of the international human rights law at the domestic level. Further information about the structure and activities f HRAA can be obtained from the English section of it’s web pages which can be reached at http://www.rightsagenda.org/main.php?lg=en
Relevant Articles of the Statute of the Human Rights Agenda Association are as follows:
The Human Rights Agenda Association Statute (extracts-definitive articles)
Name and Headquarters of the Association
Article 1 – The name of the organization is “The Human Rights Agenda Association”. The organization is based in İzmir. The organization can open brunches in and out of the country. It can join the national/international federations, confederations or similar organizations within and without the country.
Purpose of the Association
Article 2 – The purpose of the association is to act without discriminating any religion, language, gender or sexual orientation, race or nationality identities; to accept the human rights values over any political ideology and perspective; to advance and accept The Universal Declaration of Human Rights of UN, The European Convention of Human Rights and rest of the other international human rights conventions, documents, values and to practice of the human rights, develop and advance human rights values and combat human rights violations.
The Scope and the Forms of the Association’s Activities
The association may work in all areas that it sees necessary for the advancement of human rights and freedoms, and the human rights law and democracy.
In order to fulfill its objective, the association may:
a) To do all kinds of research and study on human rights and freedoms and the human rights law and democracy;
b) To organize open discussions, conferences, seminars, panels, symposiums, meetings and demonstrations alike, concerts, exhibitions; publish materials, organize competitions, give awards that are relevant to the association’s objective; to open research and development centers and similar institutions in line with its objective, to establish commercial enterprises to fulfill the objective in Article 2;
c) To organize campaigns, to run joint activities and meetings by itself or with other organizations that it decides to cooperate;
d) To establish and run facilities for accommodation, recreation, leisure or social-cultural activities;
e) To cooperate and collaborate with other private or public institutions and organizations at home or abroad;
f) To buy or sell, rent or let, all kinds of movable or real property, to have legal administration on all real property;
g) To run project based activities, to convey national and international projects, to receive and give funds to and from national and international organizations in line with the objective of the association;
h) To collect aid and donations according to the Law of Collecting Donations and relevant legislation;
i)To employ and dismiss staff .
A solicitor who is experienced in Penal Code and Human rights issues, and is capable of leading the project will be appointed as the project coordinator.
Porject Coordinator will be responsible for:
Determining five members of legal profession to form Law Working Group and organising the meetings of the group, preparing a work program and playing a leading role in the initial reviews of the Penal Code, following the discussions on the web page, organising meetings, determining participants, contacting participants, checking their attendance, managing travel and accomodation arrangements and all secretarial work.
Work plan is designed to have three stages.
1. Stage – Preparation:
a) Preparation of Briefing Documents (September 2005)
The project is anticipated to begin on 1 October. Preparatory work will begin in September and briefing documents introducing the project will be prepared and sent out in September.
b) Presentation and publicity, Web page and preparations for workshops (October- December 2005)
First step will be to present the project to the press and provide publicity through a press coctail.
All printed opinion and criticism on Turkish Penal Code will be compiled as part of preparations for a web page in October. Compiled and edited material will be made available on the web page.
Initial steps will be taken to determine those who will be invited to take part in workshops. Bar associations, non-governmental organisations and academics will be contacted to inform them on the project and they will be invited to take part. NGOs will be asked to provide the names of those who will take part in workshops. Those persons and institutions which show interest in the project will be sent registration forms to join the activities. Contact addresses of the participants will be gathered through registration forms.
All workshop participants will be determined in November and December. To keep their interest alive and to make sure they come to the workshops with some preparation they will be kept in contact. A flow of information on the issues will be created.
Venues of workhsops will be decided and organisaton will begin.
2. Stage – Workshops and the Culminating Meeting:
Workshops will be held in four regions. There will be five meetings, four regional workshops and a culminating workshop and each of them will last for two days.
Regional workshops will take place between January 2006 and June 2006. The culminating workshop where all the resolutions of previous workshops would be reviewed will take place in June 2006.
3. Stage – Report and Publication:
Law Working Group will work on the conclusions of the workshops between July 2006 and September 2006, write a report and prepare it for publishing. The alternative penal code written by the Law Working Group will be published as a booklet. 2000 copies are planned to be printed. Besides, a short documentary film about the course of the project and the outcomes will be shot and printed in CD, minimum 500 copies will be produced.
We are grateful to the National Endowment for Democracy in Washington DC, for their generous financial aid to our project.
Signatory, on Behalf of Human Rights Agenda Association,
Orhan Kemal Cengiz, President of HRAA.