Reform the Penal Code for Human Rights / Result of The Workshop In İzmir on The TPC
The workshops were held at the offices of the Human Rights Agenda Association in Izmir on 24 and 25 February 2006. During the first day 15 persons participated and on the second day 14 participants made their contributions. The workshop was chaired by Etyen Mahcupyan. Günal Kursun, the coordinator of the project, held an introductory speech introducing the association and the project. Later the Articles of the TPC were divided into groups and the participants separated accordingly into the workshops. Each workshop discussed several Articles of one group of provisions. Later the groups came together and one group presented the results of its work. During the two days all groups of provisions were discussed in this manner as much as the time allowed. Unfortunately no time was left for the last two groups. The aim was not to reach a common opinion, but to discuss all kinds of different views. On some points joint compromises turned out immediately. These points were discussed separately and marked in bold letters. The points that did not reach a compromise have been listed separately.
Please find below the summaries of the discussions in the first four groups. The discussed Articles have been listed and, if an agreement was reached, this has been marked at the end.
Group 1 of Offences
Article 125 – Insult
- It was stated that the provision does not restrict freedom of expression and that the expression of “a concrete action of incident” was important.
- The sentence was in proportion to the offence.
- Some participants argued that the offence of insult had been taken out of penal codes in Europe and been incorporated in laws on compensation. Therefore, it should be taken out of the TPC as well.
- Attention was drawn to paragraph 3. This provision was particularly used for insults against police officers and many cases had been brought under this provision, which should be evaluated together with Article 265 TPC (resistance against officers). The sentence under Article 265 was between six months and three years’ imprisonment, but Article 125 new TPC carried a sentence of no less that one year’s imprisonment, which might be a contradiction since the latter was merely an utterance of an opinion.
- Paragraph 3(c) of the Article was not clear whether insults against or of believers were meant and, therefore, the following change was suggested: “if the offence is committed because of the values that the religion of the person regards as holy”…
- Since paragraph 3(b) and (c) were closely related (philosophical beliefs also have holy values) both provisions should be combined.
- In paragraph 5 of the Article the understanding of a holy State was visible and, therefore, the provision should be cancelled.
- Instead of starting an investigation ex officio, if the offence is committed against a public servant a complaint should be compulsory.
- It would be advisable to have insults against members of a council handled as an insult against the group.
- It was stressed that this was a dangerous provision that restricted freedom of expression. In particular the formulation of “the accusation is disguised” was unacceptable. This part of the provision should be cancelled.
- It was stated that the provision should be kept, but considering that in case of insults against Atatürk Law No. 5816 was also applied, one might envisage abolishing Law No. 5816.
- It was stated that the systematic of the Article was wrong, since insults of dead people should not be listed under the part on offences against honour.
- The secrecy of private should have been stressed in the provision and not just been put in the headline. The restriction of privacy of private life should be the exception.
- If the second paragraph is read in the opposite direction one might assume that news about persons can be disclosed, if it is in line with law, but in that case it has to be determined who the persons are and from where they get their authority.
- On paragraph 4 the freedom of the press and information of the public was discussed. On the other hand, the responsibility of the press vis-à-vis the secrecy of private life remains. According to the majority of the participants these considerations should be taken into account when rewording the provision.
- The meaning of “important” in “important information” remained uncertain and it would lead to discussion what information was important or not. This part needs clarification. At the point of “give reason for damage” the condition should be made obligatory.
- The part on “responsible persons” can be omitted.
- The offence should not be described as an offence of danger, but with harmful consequences (only punishable if the results occurred).
- Some participants held that the provision could be dealt with under the provision on defamation and there was no need for a separate provision.
- As a deterrent the fine could be increased or only the possibility of a fine could be discussed.
- It was expressed that the definitions in the provision were held very broad and regional or personal factors could become decisive. If the provision is evaluated together with its reasoning several problems may arise: visible bellies could count as “exhibitionism” and, therefore the provision and its reasoning needed rewording.
- Some participants argued that the provision should be cancelled altogether.
- Others argued that the provision met a social need and, therefore, should be kept in its current form.
- In this Article it remains unclear how the word obscenity is used. The word “pornographic” would be more precise and should be used instead.
- It was agreed that the first paragraph of the provision was held very broad. Photographs, drawings, monuments that are part of the freedom of expression could be seen as obscene and, because children would be able to see them, it could be decided to remove them and punish the makers of them. Therefore, the condition of “suitable to harm the psychological and sexual development of the child” should be added.
- The same applies to other parts of the provision, where the condition should be added to the word “obscenity”.
- Some participants argued that the 2nd paragraph should be lifted, because the provision was part of Law on Protecting Children from Nasty Publications.
- The expression of “by unnatural ways” was criticized. This could create a danger for homosexual relations and it should be discussed what “unnatural” means.
- It was agreed that on the responsibility of the person in possession (of obscene publications) in paragraph 4 the condition of “possessing it with this aim” should be added.
- In paragraph 7 the formulation of “prevent children from having access” should be cancelled.
- In its current form the provision is directed against a danger, whereas it should be directed against damage. In that sense the wording of “which might result in” should be replaced by “resulting in”. It was the common opinion that the problem could be overcome by putting paragraph 1 and 2 together and introducing a new formulation.
- It was agreed that in the 3rd paragraph the condition of complaint should be added. The separation of “living in Turkey” and “not living in Turkey” was meaningless and the third paragraph should be skipped altogether.
- Some participants argued that the provision should be abolished, since the judgments of the ECoHR made it clear that demonstrations and joined movements fell under the freedom of expression as long as there was no element of violence.
- Another part of the participants argued that the provision should be kept as it, since paragraph 2 lifted the objections. The specifics of public service should be observed.
Second Group of Offences
- The group elaborated on the fact that the formulation of “open incitement to commit a crime” can easily be used to restrict all kinds of expressions, which had been the case in the past. Therefore, a general provision should be included to the effect that as a condition of democratic society the utterance of opinion is not punishable. Such a condition should also be added to Article 214.
- The third and first paragraph of the Article should be combined.
- The offence should not be applied for the danger of an offence.
- Some participants argued that the provision should be retained, but the sentence should be imprisonment between 6 months and three years so that the judge had the opportunity to commute it to a judicial fine.
- Other participants held that the first paragraph should include the condition “if it constitutes an open and imminent danger”.
- Some participants said that the offence should be included under offences against persons and be reworded.
- It was said that the second paragraph should be retained.
- Some participants argued that appraisal should be considered within the limits of freedom of expression and, therefore, the provision should be skipped.
- It was said that in its current form the provision was a narrowed version of previous Article 312/1 TPC.
- Some participants argued that the provision should remain, but in order to have the punishment personalized the possibility of a judicial fine should be included.
- While some participants insisted on including “sexual orientation” in the first and second paragraph others held that there was no need for it.
- It was argued that the second paragraph should be added to Article 122 TPC and philosophical belief and sexual orientation should be added.
- The group agreed that the second paragraph should include the possibility of a judicial fine.
- Some participants argued that the third paragraph should be cancelled.
- Some participants held that the provision aimed at civil disobedience and should be abolished.
- An agreement was reached to the effect that the provision could be kept if the condition of “if it disturbs public peace” was added.
- The participants who felt that the condition of “expressions that intend criticism and do not go beyond the limits of informing are not an offence” was sufficient said that the provision should be retained as it was.
- Other participants argued that the first sentence had to be lifted and the second paragraph had to be extended with the expression of “with the aim to inform the public and inform the public.
- It was also said that the word “only” should remain in the second sentence.
- It was agreed that the provision should explicitly include the formulation of “expressions of opinion with the aim to provide information, inform the public and criticism are no offence” should be included.
- Most participatants argued that although the space of action was broader for religious leaders compared to other perpetrators, other professional groups also had the possibility of affecting others and, therefore, the provision should be cancelled.
- One participant said that the provision was introduced under the impression that the greatest attack on the State would come from religious persons and circles. This was true for Turkey and, therefore, the provision should be retained.
- It was said that paragraph 8 should be skipped and the rest of the provision could remain as it was.
- On the other hand, propaganda for an organization should not remain unpunished and, therefore, paragraph 8 should be kept, but reworded.
- It was agreed that the provision that had no more function should be cancelled.
Third Group of Offences
- Some participants said that all staff in the judiciary had to be independent (including lawyers) and, therefore, the provision was important.
- Another group of participants found the expression “by any means” too broad and argued for cancellation. It was not correct to provide the judiciary with an extraordinary immunity and it should be possible to criticize verdict.
- It was also maintained that the provision should be combined with Article 288.
- It was suggested that experts and witnesses should be included.
- It was expressed that the fourth paragraph covered a large area. There was no doubt that impression that had news value should be presented, but the press had to stick to the secrecy of interrogation and prosecution. Under these considerations that provision should be reformulated.
- Some participants argued that the terror of the press should be prevented and the presumption of being innocent had to be protected. Therefore, the provision should be retained. The provision was different to paragraph 4 of Article 285. While Article 286 related to publication of voice recordings, Article 285(4) related to images and, therefore, should be kept.
- Some participants argued that the provision was covered in paragraphs 1 and 4 of Article 295 and there was no need for such a provision. In addition, the public had to be informed and, therefore, the provision should be cancelled.
- It was expressed that “experts and witnesses” should also be included in Article 277. The headline of this Article should be changed to “influencing the court proceedings”. Because in a democratic society the people needed to be informed and decisions should discussed the provision should be lifted altogether.
- Another group of participants argued that Article 277 and 288 were quite different and the act of “influencing” in Article 288 was quite obvious. Therefore the provision should be retained.
- It was said that this provision had frequently been used in order to prevent actions such as death fasts, boycott of hearings and visits. The expression “by any means” was criticized as being too broad. Any kind of opinion could easily be taken as incitement, order to such actions. In addition, even prisoners should be entitled to decide on their bodies and nutrition. Their actions against unlawful treatment were part of freedom of expression and, therefore, the provision should be abolished.
- Another part of participants argued that actions such as death fast and boycott of hearings were ordered by organization and those who did not participate were punished by the organization. This group of participants wanted the provision to be retained but the formulation of “by any means” be replaced with “against the law”.
- It was also expressed that the second sentence of paragraph two should be skipped since it provided for punishment of a danger and was obviously an attempt to sanction ideas.
The fourth group of offences
- The first paragraph of this Article was also part of the Law on the Flag. The sentence should be determined according to the principle of proportionality. With the second paragraph it was made impossible to comment on the national anthem. The group that held this view also argued that paragraph 3 should be skipped since it provided for an increase of sentence, if the offence was committed abroad.
- Some participants argued that the provision should be kept. However, the expression of “symbols of sovereignty” and the formulation of “as symbols” or in “other ways” should either be reworded or skipped. The sentence for the offence described in paragraph was termed too high. The upper sentence should be one year’s imprisonment and an alternative of judicial fine should be introduced. In the second paragraph defamation of the national anthem should be forbidden, but criticism should be allowed and the provision should be formulated accordingly. The third paragraph should be skipped altogether.
- Some people said that the provision should be considered in conjunction with Article 341 and, if the part on the flag would be retained, flags of foreign Stated should also be protected.
- The criteria of “open and imminent danger for public security” should be added.
- In the second sentence of the first paragraph the addition of “… sign” should be cancelled.
- There was an agreement that the third paragraph should be skipped.
- There was an agreement that the provision should be skipped altogether.
- It was said that everything raised on Article 300 was also valid for Article 341.
There was no time to discuss the offences of group 5 and 6.