Reform the Penal Code for Human Rights / Result of The Workshop In Ankara on The TPC
The workshop in Ankara was held on 24 and 25 March 2006 in the offices of Amnesty International. On the first day 14 people and on the second day 13 people participated. The workshop was chaired by Etyen Mahcupyan. The workshop started with a speech of the coordinator of the project, Günal Kursun who introduced the project and informed about the association. The project concentrated on 40 Articles of the TPC relating to freedom of expression. It was also stated that general provisions had to be analyzed and that some special provisions also affected freedom of expression.
The work was first conducted in small group which later came together. Each group dealt with a number of provisions and later presented their results to the whole workshop. The workshop in Ankara followed the workshop in Izmir. The provisions (gathered in package 5 and 6) had not been discussed in Izmir (for lack of time) and, therefore, the workshop in Ankara started with these provisions. Later the provisions in package 1 and 3 were discussed while there was no time left to discuss the result of the groups working on package 2 and 4.
The aim of the small groups was not to reach a common opinion but allow all ideas to be expressed. At some points agreement was reached spontaneously. These results have been written in bold font. Below you also find points that did not end in agreement. The results are listed according to the order in which they were discussed. The provisions and comments are listed below.
Group 5 (of offences)
Article 304 – Offences against the security of the State
- The provision was held stretchy; there is doubt about the meaning of some words and some are open to subjective interpretation: hostile, incitement, cooperation, security of the State, organization, direct and indirect are words that have to be specified; the reasoning for the penal code does not clarify the issues.
- The expression of “hostile acts” should definitely be taken out of the provision.
- It might be corrected in saying that “hostile acts directed at entering war…”
- The expression “incitement” should be replaced with “collaboration”.
- The expression “incitement” should be removed completely.
- The workshop welcomed and supported the suggested changes of the working group.
Article 305 – Gaining an advantage to carry out an activity against fundamental national interests
- The Article should be removed completely. The introduction of an offence with unclear expressions like that is against almost all principles of penal law.
- The permission of the Ministry of Justice gives reason for subjective implementation.
- “Fundamental national interest”, “advantage” and “direct and indirect” are subjective expressions.
Article 306 – Recruitment of soldiers against a foreign State
- The text of the provision is unclear in language
- It is unclear what “hostile acts” mean. The expression should be removed from the provision.
- The recruitment of soldiers should be prohibited, regardless of the purpose.
- The provision is necessary but should be revised in its wording.
- The fifth paragraph should be lifted because it gives reason for subjective implementation.
- What does “as unauthorized” mean? Can such an authority be given?
- Can the legal military formation, the security forces or some “legal” formation in connection with the State be treated under this provision?
- Instead of recruitment of soldiers the expression “armament” could be used.
Article 313 – Armed Uprising against the Government of the Turkish Republic
- The expression “incitement” used in this provision has to be discussed. It could be replaced with “giving directives”.
- Because of Article 312 there is no need for this provision.
Group 6 (of offences)
Article 318 – Discouraging people from performing military service
- The first paragraph of the provision should be removed. Nobody has to be positive (warm) about the military service of the population and, therefore, it is not necessary to punish discouragement (cool down emotions on military service).
- The second paragraph of the provision should be removed. The provision is a danger to the press freedom and once of the obstacles for freedom of expression.
- The provision states that you either “love military service” or, if you don’t “do not say it”.
- If the principle of “peace at home and peace in the world” (Atatürk) is real, peace has to be made without arms.
- The provision is a violation of the right to freedom of expression.
Article 319 – Instigation of military personnel to disobedience
- The provision should be removed completely.
- The provision is necessary and should be kept but amended according to the suggestions of the working group.
- The wording of the provision has to be changed and should be shorter.
Article 323 – Disseminating false news in times of war
- The fourth paragraph is not understandable. It cannot be understood that only the decrease of the value of foreign currency is mentioned.
- The provision should be amended according to the suggestions of the working group.
- The expression in the first paragraph on “harm the country in economic terms” is sufficient. All other expressions should be removed.
- The offence of a danger could be turned into an offence of damage.
- Stretchy expressions such as “fundamental national interest” should be corrected.
Article 327 – Obtaining information relating to State security
Article 329 – Disclosure of information relating to the security and political interests of the State
Article 330 – Disclosure of classified information
Article 334 – Obtaining prohibited information
Article 336 – Disclosure of prohibited information
Article 337 – Disclosure of prohibited information with the purpose of political or military espionage
Article 339 – Possession of documents concerning the security of the State
- Almost all provisions use stretchy expression open to interpretation.
- Expressions such as “have to held secret because of their nature”, “security of the State or internal or external political interests” or “with the aim of political and military espionage” are hard to understand.
- There is a wealth of provisions that can be put together. For example, Articles 327 and 334 provide for sentences in case of “obtaining” and Article 329, 330, 336 and 337 provide for sentences in case of “disclosing”.
- Seven provisions can be put in one or two articles. All are concerned with “obtaining”, “possession” and “disclosure” (of information).
- The sentences are out of proportion. The sentences for disclosure must be less.
- The subject should be dealt with in a separate law.
- Without altering the content of the provision but amending the wording the articles can be joined to one article:
- Anyone who possesses information that for the security of the State or internal or external political interests has to be kept secret will be sentenced by…; who obtains such information will be sentenced by…; discloses such information knowing that clear damage will occur will be sentenced by…
- Anyone who commits the offences with the aim of espionage will be sentenced by…
- If the offences are committed during wartime or during preparations for war the sentence will be…
- If the offences are committed against the security of a foreign State, the sentence will be…
Group 1 (of offences)
Article 125 – Insult
- Insults of sexuality of society should be added to the third paragraph.
- Insults of ethnic origin should be included in the provision.
- The third paragraph should be amended.
- Religion is not characteristic of a person. It should be removed from the provision and regulated in a separate article.
Article 126 – Determination of the victim
- The workshop in Izmir discussed the condition of “even if the accusation is disguised” which is very stretchy and open to subjective interpretation. The expression should be removed from the provision.
Article 130 – Insult of the memory of a person
- When there is an insult of Atatürk a sentence should be given according to Law 5816. This provision should not be applied.
- In the second paragraph “nor” should be replaced by “and”.
Article 132 – Violation of secrecy of communication
- The second opinion of the working group on this provision was unanimously accepted.
Article 164 – False information on Companies and Cooperatives
- It was argued that the provision should be kept as it is.
- Others thought that stretchy expressions should be removed.
- It was discussed that because of the word “suggestion” the provision might be an obstacle to declare ideas that are not harmful.
Article 225 – Indecent acts
- The definitions in the provision are wide and can be interpreted subjectively.
- The reasoning for the provision contains ascertainment that cannot be accepted.
- The provision should be amended.
Article 226 – Obscenity
- It was said that the first opinion of the working group was profounder and should be supported.
- Common opinion was to add the expression of “when damage is done to the mental and sexual development of children” to the first paragraph.
Article 237 – Influencing Prices
- It was said that the suggestion of the working group should be supported.
Article 239 – Announcing secret information or documents of trade, banks or customers
- In all situations the condition of complaint should be required.
- Why is there no reason for an increase if secrets are announced to foreigners residing in Turkey? What is the logic behind this discrimination? The third paragraph should be removed completely.
Article 260 – Evasion or refusal of public duty
- The provision should be removed completely.
Group 3 (of offences)
Article 277 – Influence on members of the judiciary
- Experts and witnesses have to be included in the provision.
Article 285 – Violation of confidentiality
- The fourth paragraph is at a wrong place for systematic reasons. The subject should be (is) part of the law on the press.
- The expression of “labelling” in the fourth paragraph should be replaced with “announcing” and “publishing of images” should be replaced with “broadcasting”.
Article 286 – Record voice or images
- Already Article 285 provides for sentences if confidentiality is violated. If there is no confidentiality there is no need for a sentence. Therefore, the provision should be removed completely.
Article 288 – Attempt to Influence Fair Trial
- It was stated that the opinion of working group was unanimously supported.
Article 298 – Hinder the use of rights and nourishment
- It was said that the part on hunger strikes should be removed.
- Others said that it should be retained.
- It was said that instead of “urging-persuasion” the expression of “coercing” should be used.
- It was asked why the provision was restricted to prison and said that the prevention of nourishment in custody should be included in the provision.
- It was said that the heading of the provision was wrong and needed replacement.
Lack of time prevented the workshop in Ankara to discuss the second and fourth group of offences.