Reform the Penal Code for Human Rights / Result of The Workshop In Istanbul on The TPC
HUMAN RIGHTS ASSOCIATION AGENDA THE OUTCOMES OF THE ISTANBUL WORKSHOP
ON TURKISH PENAL CODE (TPC) PROJECT
The workshop took place at the office of Istanbul branch of Mazlum-Der on 6-7 May, 2006. On the first day of the workshop 5, on the second day 3 participants kindly furnished their contributions. The workshop was chaired by Etyen Mahçupyan. The meeting commenced with a speech by Günal Kurşun, the Project Co-ordinator, who introduced the Association and the Project. It was made clear that in this project, on the basis of ‘freedom of expression’ forty articles of the TPC would be analysed; that common provisions should be analysed separately, yet individual provisions contain clauses which directly or indirectly breach the freedom of expression.
During the workshop, in view of the number of the participants, the articles to be discussed were picked up in a certain order. The workshop in Istanbul was the third of its kind in this project. The discussions there were conducted systematically with the conclusions of the first two workshops in Izmir and Ankara; consequently, it was decided that the offences under the second, forth and fifth groups which, because of time pressure, could not be examined in a detailed manner in Ankara and Izmir should be particularly dealt with at this workshop in Istanbul.
Reaching a common consent at the end of each debate was not our intention, rather all views expressed at the workshop were encouraged to be explicitly and freely clarified. At some points, common consent emerged spontaneously; then these items were separately reviewed and written down in bold. The points over which there was no common consent are listed below.
You will find below the summaries of the debates regarding the second, forth and fifth groups respectively. All of the arguments which were put forward during the workshop are enlisted one by one. When there appeared a conclusion, it is typed exclusively under the entrance of the related article.
2nd Group Offences:
Article 214- incitement to commit an offence
- The article should certainly be altered.
- The wording of the article should include the statement of that “for the purpose of committing an offence”, a specific offence should be named.
- Element of publicity should be respected.
- In the second paragraph, it is required that the person who incited the offence and the one who provided the arm used should be the very same person. This is not acceptable. The phase “to be armed or kill each other” should be added.
- The text of the article does not confirm the reasoning behind it. In order to achieve some consistency, the phase of “having armed to kill each other” at least could be implanted.
- Expression of thought should not include violence and insult, however it should have an effect in transforming the concept of offence.
- Interpretation of the article should be based on law but not on legislation.
- The concept of offence does have quite a far-reaching extent; its scope should be narrowed.
- In order to narrow the concept which is far too broad, the criteria of “obvious and imminent threat” should be added to the 1st paragraph of the article.
- We do not agree with the notion that the article applies in relation with individuals only, because it is placed under the title of offences against public peace.
Article 215-Praising the offence and the offender
- It not all clear what is meant by offence. For example, one wonders that whether disciplinary offences are to be included in this definition?
- The article should be redefined. It should be clearly stated whether a particular offence or all types of offences would be included in the scope of the article.
- This action should not be regarded as an offence.
Article 216- Inciting the public to hatred and enmity or humiliation
- The distinction between humiliation and criticism is not evident in the article. These two should be exclusively separated from each other.
- The 3rd paragraph of the article does indeed accommodate a huge degree of relativity; it should, therefore, be deleted altogether.
- The 3rd paragraph, after certain alterations, should be preserved as a case of offence.
- The phase of “sexual orientation” should also be implanted in the 1st and 2nd paragraphs of the article.
- The phase of “sexual orientation” should never be implanted in the 1st and 2nd paragraphs of the article.
- The phase of “philosophical opinion” should be inserted in the article.
- The criteria of “obvious and imminent threat” should be inserted in the 2nd paragraph of the article.
Article 217-Incitement not to abide by law.
- The article on the whole should be omitted.
- The phase of “in the case of harming public peace” should be included in the article.
Article 218- Common Provision
- The article should be revised through the incorporation of the criteria of “informing the public”
- The article should be preserved as it is.
Article 219-Abusing religious services in the course of duty.
- The article should be removed on the whole.
Article 220-Forming an organisation for the purpose of committing offence
- The 8th paragraph of the article should be completely omitted.
- The statement regarding making propaganda for an organisation should be maintained exactly as it is; but making propaganda for an objective should not be deemed as an offence.
- Element of “publicity” should be incorporated within the article.
Article 222- Wearing Hat and Turkish Script
- The article should be removed altogether.
4th Group of Offences:
Article 300- Humiliating Symbols of the State Sovereignty
- The 3rd paragraph of the article should be removed; the rest should be preserved as it is.
Article 301-Insulting Turkishness, the Republic, the institutions and organs of the State
- The article should be cancelled altogether.
Article 341-Insulting the flag of a foreign state
- The article should be revised in harmony with Article 300
4th Group of Offences:
Article 304-Incitement to waging war against the State
- This article is one of those ones which are called common articles. Cases which could not be placed under other headings could easily be incorporated in the scope of this article.
- There are vague phases which need to be clearly expressed.
- In a penal code, the principle of reasoning holds a significant meaning. Yet, how to build up reasoning is a matter of question. This creates problems especially in terms of law of proof and right of defence.
- Sometimes, to write articles which include elements of incitement in order to catch the attention of the public is among the duties of a journalist. This article, however, hampers the execution of this very journalistic duty.
Article 305- Gaining an advantage in order to carry out an activity against fundamental national interests
- One wonders that if there are fundamental national interests, what could not-so-fundamental national interests be?
- What is meant by ‘independence’? The meaning of the word might well fluctuate according to person.
- The article should be omitted altogether.
Article 306- Recruitment of soldiers against a foreign state
- Whom will grant the ‘authorisation’ that is referred to in this article? If one recruits soldiers in Turkey with the authorisation of the Chechen rebels, would that be considered under this article? The article should be clearly expressed.
- In accordance with the situations stated in paragraph 6 what is to be done “in the case of a covert invasion”? Mahir Çayan then claimed that Turkey was under a covert invasion. On that occasion, could paragraph 6 be implemented?
- There are linguistic ambiguities in the text of the article.
- It is unclear what it means by “other hostile movements”. This article should be omitted from the text.
- What does the term ‘foreign state’ refer to? It is not clear. It does not say anything if a third country is also involved.
- Recruitment of soldiers should be forbidden for any reason whatsoever; and the text should accordingly be revised.
Article 313- Armed Uprising Against the Government of the Turkish Republic
- The word “incitement” should be discussed over; it should be made plain what it means by the word.
- This article does not have legal connotations, it is political in essence. Because it extend its sphere of influence by denoting the general public but not a certain group. If a public uprising broke out by that time, the new order that was to be established in due course would be defended. If this actually happened, then what one might well assume is that this was indeed an armed uprising and the perpetrator, even if not practically among the insurrectionists, should have incited the uprising. All these alone induce a political meaning to the article.
- The implementation of the 3rd paragraph in practice is impossible.