Reform the Penal Code for Human Rights / Group 3 – Analyzing of The Articles of The Penal Code
Offences against the Judiciary
Influence on members of the judiciary
Article 277 – (1) Whoever attempts to influence members of the judiciary in an unlawful way with any kind of means by giving orders, exerting pressure or influence for or against one or some of the parties participating in a trial, the defendants, participating parts or victims will be punished with imprisonment of two to four years. If the attempt did not go beyond the degree of recommendation the sentence will be imprisonment of 6 months to two years.
With the expression of “any kind of means” the judiciary should get an extraordinary protection. This expression enables to punish any kind of utterance in connection with activities of the judiciary.
The formulation of “attempt to influence members of the judiciary in an unlawful way with any kind of means” should be cancelled. This expression turns the contact to the judiciary into a minefield. Comments on court cases or just reporting on it could be made a subject of this provision.
The judiciary is not in a position not to be criticized and it cannot be imagined that it is without faults. The verdict are not absolute and beyond criticism. The principle of separation of power is directed against pressure from the legislative and executive on the judicative. In other words, it is not intended to create an area of immunity that apart from the powers prevents the public from using it democratic right of criticism. On the other hand, the members of the judiciary should have the ability to remain resistant to this kind of influence because of the professional ethics.
In the de Hans and Giysels v. Belgium judgment the ECoHR ruled that “The courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. They must accordingly be protected from destructive attacks that are unfounded… In this matter as in others, it is primarily for the national authorities to determine the need for an interference with the exercise of freedom of expression.”
Besides the omission of “in whatever ways” experts and witnesses should be included into the scope of this provision just like in Article 288 TPC. It was suggested to change Article 277 TPC to the following formulation:
Influence on members of the judiciary
Violation of Confidentiality
Article 285 – (1) Whoever publicly violates the confidentiality of an investigation will be sentenced with imprisonment of one to three years. For decisions that are taken during investigation and that are confidential by law and for measures taken according to these decisions the offence occurs without being committed publicly.
(2) Whoever publicly violates the confidentiality of declarations or images taken in hearings that according to the law had to be held or were decided to be held in closed session will be sentenced according to the provision in paragraph 1. In case that the protection of a witness is concerned the offence occurs without being committed publicly.
(3) The sentence will be increased by one hald, if the offences are committed via press and publications.
(4) If during investigation and prosecution images are published that label persons as guilty a sentence of imprisonment of six months to two years is passed.
Record voice or images
Article 286 – (1) Whoever records or transmits voice or images during investigation and prosecution without authorization will be sentenced with imprisonment of up to six months’ imprisonment.
Since the first and fourth paragraph of Article 285 TPC contain such an offence there was no need for an additional Article.
It is not understandable that there is a need for such a kind secrecy in a court case. It is meaningless to have such a restriction unless there is a violation of the presumption of being innocent. The provision is against the freedom of the press and the right to a public hearing.
One of the basic consequences of the freedom of the press is the right not to dislcose the source of information. The way the provision is presented rather than the person presenting information the person recording and transmitting is supposed to be punished. It could even be considered that the reporting person does not commit an offence. This involves another danger. Those who publish a forbidden recording can be pu in a situation where they either face a sentence or disclose their source. Under such a risk and threat of punishment the press cannot be called free.
The only value that needs protection is the presumption of being innocent. This right was secured in Article 285(4). Considering the necessity of informing the public the provision should be abolished altogether.
Even though the arguments of the first opinion seem to be plausible, it is frequently observed that images and voices of persons that have not been finally convicted are published in a way that makes them appear as convicted or sentenced persons. If they are later acquitted almost no news appear and in the mind of the public the first news remains. Thinking about the practice in our country and the importance of the presumption of innocence the provision should be retained.
Attempt to Influence Fair Trial
Article 288 – (1) Whoever makes oral or written statements in public in order to influence a prosecutor, judge, court, expert or witnesses until an investigation and prosecution has result in a legally binding verdict will be sentenced with imprisonment of six months to three years.
(2) (…) paragraph 2 was removed with Law No. 5377 of 29 June 2005
There is no doubt that the provision aims at a prohibition for the press. In an article entitledFreedom of Expression under the European Convention on Human Rights Amaya Úbeda de Torres stated inter alia:
“The European Court has described journalists as ‘watchdogs’ of democracy, as it did in its 2000 judgment Bergens Tidende and Others v. Norway. In fulfilling its duty to disseminate information, the press must not overstep certain bounds, such as harming the reputation and infringing on rights of others, or disclosing confidential information…
Freedom of expression implies not only rights but also duties, as the European Court held in Goodwin v. UK emphasizing that the media must provide accurate and reliable information in accordance with the ethics of journalism and the principle of good faith.”
The headline of the provision is “attempt to influence fair trial”. Fair trial is in short the right of a person to be tried by an independent and impartial court. In that sense the aim of the provision should have been to protect the independence of the courts. It is not the individual that makes courts dependent, but the hierarchy in society and the system of order and dutifulness. In that sense the interference of the political power in a State should have been prevented.
All kind of restrictions should be evaluated according to the necessity in a democratic society. Such a restriction should not be related to express an opinion on an investigation or prosecution. Such an opinion can relate to the question of something should be a crime or not and the way the person with the authority to judge have used their authority.
According to the code of criminal proceedings judges deliver their verdicts according to their conscience. The conscience of judges is not separated from the society and in a sense the judges can be called public conscience. There should be no sanction, if someone recalls his/her own conscience.
The formulation of “with the aim to influence” can lead to any kind of expressing a view as being within the scope of the provision. It should also be remembered that in Turkey the judiciary is open and unprotected against the influence of political power and, therefore, any kind of negative trial and verdict against the freedom of expression can turn up.
Expressions with an unspecified scope such as “aimed at influencing” are against the principle of prediction and make the interpretation of the executors of law the sole source for qualifying the offence. Such vague formulations in provisions that are not applied for those in power can be the tool to intimidate socially weak or dissident circles.
Views on criminal proceedings are a contribution to the publicity of trials. The public will be informed and the persons mentioned in the provision will carry out their duty with more care. It is one of the principles developed by the Court of Cassation that verdicts have to “possess clear reasons that satisfy the parties and everyone”.
In defining and particularly in implementing a legal rule it has to be accepted by the public conscience. Only in that case the rule can be called lawful and legitimate from a human rights perspective. On the other hand, it is one of the basic rights to show civil disobedience or resistance against rules in contravention of human rights.
As long as this provision is valid the right of the people to resist rules and implementations against human rights will be eliminated. Recent developments highlight this fact. Those, who pointed at the fault to arrest a dean, who criticized the decision to cancel a conference although the court was not competent, who said that a verdict was against the freedom of expression and many others found themselves under the threat of this provision. Yet, the dean was released; another court ruled that the conference should be held and, in a way, reality showed that the criticism had been justified. Therefore, the punishments of declarations of thoughts later found to be correct means to punish those who say the truth.
Another point is the indispensable right of minorities to turn into majorities. This right also relates to criminal justice and the best way to establish the mistakes of criminal justice is to analyze the criminal proceedings.
The only exception that can be accepted is the presumption of being innocent, but this point was settled in Article 285(4). In Article 277 TPC pressure on the judiciary is sanctioned so that the social need was met in this provision to a large extent. The additional provision creates the impression that it was not based on a real social need and only directed against the freedom of expression.
Therefore, the Article should be skipped altogether; the addition of experts and witnesses should be moved to Article 277 so that these persons are protected from unlawful influence.
Hinder the use of rights and nourishment
Article 298 – (1) Those who in whatever ways hinder convicts and pre-trial detainees in correctional centres and prisons to communicate, meet their visitors, participate in education and sport as part of the rehabilitation and educational programs, in activities of acquiring a profession and in studio works and all other social and cultural activities, to be examined and treated by the physician of the institution, appoint legal counsel or lawyer, meet with them, go to court or the public prosecutor, meet the representative of the institution, for those who have been released to leave the institution or who urge prisoners to such an offence, who give orders in this way or who hinder convicts and pre-trial detainees in their legally entitled possibilities of meetings and contacts will be sentenced to imprisonment of one to three years.
(2) Those that hinder nourishment of convicts and pre-trial detainees will be sentenced with imprisonment of two to four years. Urging or persuading convicts and pre-trial detainees to a hunger strike or death fast or giving them directives in this way will count as hindrance of nourishment.
(3) If as a result of hindrance of nourishment as a result an aggravated form of intentional bodily harm or death has occurred sentences for intentional bodily harm or intentional killing will be applied.
It should not be wrong to say that the aim of this provision was to weaken or prevent actions that in particular political prisoners sometimes developed as a political attitude and in other times as protest against their situation in the form of hunger strikes, death fasts, boycotts of hearings and visits.
Opinion can be expressed in word and in behaviour. It is known that in Turkey political prisoners protested against ill-treatment during transfer by not appearing in court, against the prison conditions by not meeting visitors or showing resistance against uniformed clothes.
From the formulation in the provision it becomes obvious that is was accepted that prisoners have no free will on subjects that are completely in their own interest. It was assumed that all declarations and actions on negative conditions in the prison develop outside these persons free will and under guidance.
However, individuals even of their are held in prison have the right to express their wishes, complaints and criticisms and show their reaction against the negative conditions under which they are held according to their own preferences, even if this happens for the price of putting their own lives at risk. The fact that someone is deprived of his/her liberty does not give the State the right to deprive him/her from the right to freedom of expression.
It is certainly possible to criticize or not approve that someone chooses to put his/her own life at stake in order to be heard. But, if the action is the result of the person’s own free will, no one has the right to prevent this using force.
Judgments of the ECoHR have made clear that in case prisoners, who have been exposed to inhuman or degrading treatment or punishment, use their democratic rights to react against it and, if the situation does not change, risk their own lives the people in charge have to answer their reaction and find a remedy. But the provision goes into the opposite direction and based on the assumption that all kinds of reactions in prisons occur as the result of an organizational order restricts the rights of persons showing such a reaction by aggravating the imposed sentence in an extraordinary way. This is an approach aimed at eliminating the prisoners with very high sentences.
The text of the provision reflects the view of the State to see the bodies of the prisoners as a means of punishment (goods). The logic is to say “Since you were sentenced your body is mine. Even if you have a free will I shall use my right to punish. In order to weaken this body I use my right to punish and you have to stay away from movements that can ruin your health.” This is a second kind of sentence that is not expressed in the courts’ verdicts.
A sentence basically consists of a temporary deprivation of liberty of a person. This is only meant as restriction of physical movement of the person. All other rights and freedoms and naturally the freedom of expression, too, are valid for prisoners without discussion. In that sense nobody should resort to actions that alienate the imposed sentence.
Because of these reasons, the provision should be cancelled altogether.