HUMAN RIGHTS ASSOCIATION’S OPINIONS ON CHANGES IN ANTI-TERROR LAW

 

A) IS CHANGE IN ANTI-TERROR LAW A REAL NECESSARY?

After Turkey was accepted as a candidate country for EU, in 1999, there were some new laws and some changes in articles that are contrary to democracy, human rights, primacy of law, and protection of minorities (Copenhagen Political Principles). These laws and changes were carried out in the normalization process (according to some persons this process is the reformation process) that had begun in terms of EU relations. In this sense, there were some new regulations in prosecution methods of crimes, in detention periods, rights of the accused persons and methods of judiciary. Moreover, some activities were taken out from being crime (For example; the article 8 in the Prevention of Terrorism Act) and some regulations were made in points of crimes. However; in all of these regulations special regulations, particularly, on terrorist crime or crimes that carried out in terrorism aim. The abolished court, State Security Court, was replaced by special Heavy Penalty Code that carries out same tasks in the previous methods. So, special court implementation on “terrorist crime and crimes that carried out in terrorism aim” was continued. In prosecutions of these crimes accused persons were subjected to different rules, from general rules, regarding meeting with lawyer or detention periods. Another important example is the article 5237, which passed in the same process, in Turkish Penal Code. After this article, depending on 220/8, not only propaganda of illegal organization but also “propaganda of organization’s aim” was accepted as crime. However, until that time only “propaganda of organization” (Prevention of Terrorism Act article 7/2) was crime. Therefore, freedom of expression in the political area was highly limited.

Therefore authorities were care about not to make important changes particularly in the category of “terrorist crimes or crimes that carried out in terrorism aim”. Amendments aimed to increase effects of prosecutors and judges in the process on following and prosecutions of crimes.

Yet some “security” groups (soldier/police), who

a)                  are not accustomed to limitation of their activities with law norms, not to be examined in front of judge because of activities-practices,

b)                 do not have tolerance to even relative amendments in freedom of expression, meeting, protest demonstration, press release in democratic area and putting into prison, ban and suppressing.

c)                  have fear about losing their position and power in the state when Turkey becomes the member of EU. Although they do not express openly, they are against the EU membership in the core,

express their objections immediately. On one hand police forces allege that they lose their authority in fighting against crime, on the other hand; army authorities said that “the laws on prevention of terrorism act” are not satisfactory. Increase in the armed fight atmosphere and media’s intentional broadcasts caused to easier acceptance to these arguments and talks in the public opinion.

The Government’s hesitant disingenuous attitudes in EU relations so to carry out an effective the normalization process, to implement any project or plan for solution of Kurd problem (just violence) and its tolerance, for oncoming election, some nationalistic arguments and actions that are increased deliberately convicted The Government to operate militarist demands without any resistance. The Government could not create public opinion about the primacy of law and get their support against all these events. One point missed out in these events. The point is that one of the main targets of these nationalistic arguments, actions was the Government which came into power by Parliament decision.

In this repressive atmosphere, which created intentionally, neither public nor the Government could not discuss that are changes in Prevention of Terrorism Act and Police Task-Authorities Laws real necessary or how it will affect to atmosphere of freedoms and human rights? There were related issues, to changes in Prevention of Terrorism Act that we never discuss. Some of these issues were; martial law-state of emergency regimes of Turkey, 125-90-15 days detention periods in earlier times of Turkey, inhuman treatments-torture for the purpose of extracting a forced “confession” from a detainee, evacuation of thousands villages under the name of security, millions of people had to evacuate their origin villages, towns and moved to metropolis to survive, no pressure against policemen and soldiers’ practices, but covering such illegal groups, torturers favoured instead of punishment, no solution for any problems though these implementations.

We never talked that those guilty persons either criminal or guerrilla who live in mountains for political goals, are the citizens of this country and killing them brings hostility rather than solution.

We never tried to solve problems that cause Kurd Problem and other social problems by means of more humanitarian, democratic, peaceful, dialogue with both sides. We never tried to solve these problems via projects that promote law, human rights and freedoms. However, we carried out some methods that are identified with termination, neglect, violence and pressure. There are also other issues that we never deal with the cited methods. These issues are; increasing in crime numbers; new kind of crimes that never experienced, violence’s spreading into every part of life (family, school, street).

Actually, we never asked some questions about laws. The first question we did not ask that “is there any necessity for making more disciplinary these laws?” The second question was “did these suppressive laws (specifically Prevention of Terrorism Acts) that are contrary to present democracy, human rights and freedoms?

Still it is not too late; let’s think and object to the regulation. Let’s not to allow more pressure on our freedoms, more violations in human rights field, new torture, extrajudicial killings and new sufferings in our country. As one of the respected parliamentary members said “until today, we have not solved problems via bombing our countries and killing our children, how we will solve after today? It’s time to start (maybe late) thinking that there are some mistakes in our operations”.

B) GENERAL OPINIONS ON CHANGES THAT INTENDED TO PUT INTO FORCE IN PREVENTION OF TERRORISM ACTS:

            Draft of the proposed law was prepared contrary to democratic principles, human rights, law technique, fundamental law and European Court of Human Rights. It was prepared by disregarding being lawful and typical principles that are basic principles in penal law, and in a manner of giving wide comment rights to security forces and special authorized courts. The draft was proposed in an indefinite manner. Preparing a draft of proposed law, with knowing that it is contrary to Fundamental law, is contrary to the principles of law state. In the Official Journal, which dated 04.11.2003 and number 25279, there were some definitions on law state. These definitions were stated in the decision, whose date was 10.04.2003 and number 2002/112 E, 2003/33 K, of fundamental law’s article 2. According to these definitions the state law is the one which,

-respects human rights,

-protects and promotes these rights and freedoms,

-law state’s any activities-exercises are suitable to law,

-establishes and conducts proper law order in every field,

-avoids from inappropriate manners and behaviours for Fundamental law,

-puts law to the higher position than all other state institutions,

-depends on Fundamental law and supreme rules of law,

-open to examination of judicial control

-knows that there are some basic law principles, which cannot be violated even institutions that prepare them.

            The members in the Council of Ministries knows that there are statements that contrary to the Fundamental law in this draft of the proposed law, which prepared by Justice Ministry, General Staff and Security General Directorate, then sent to Office of Prime Ministry and TBMM (Turkish Grand National Assembly). The Government puts “law state” on to shelve by this proposal.

            The proposed law aims to suppress any person, who has different idea from authority. Actually, such a suppress aims to abolish social opposition and replace law state by “police state”. In Fundamental Law’s decision dated 06.06.1991 and numbered 1990/35 E, 1991/13 K; there are principles “The article 2, in the Fundamental Law, states openly that Turkish Republic is a social law state. Being law state provide security for citizens. Such a security can be carried out as long as all practises of legislation, judgement and implementation are suitable for law rules. In law state’s elements there are principles; laws depend on public interest and equality.” The statement indicates that there is an obligation; law state should be based on public interest and equality.

In this proposed law Fundamental Law’s some principles, law state in article 2, equality in 10, life right security in 17, freedom for opinion expression in 26, right for meeting-demonstration in 34, right for defending in 36 and legality in crime-punishment and elements of being typical in criminal court are violated. In this proposed law International Conventions, beginning from European Convention on Human Rights are ignored, moreover; ECHR and Supreme Court’s decisions are either ignored or interpreted in a different way that contrary to law. Many articles, in the proposed law, are indefinite. Characteristic of this implementation is changeable according to political necessities. However; it should not be ignored that such a proposed law can judge persons, who prepare now, in the future.

C) CRITICIMS ON ITEMS IN THE PROPOSED LAW

§        Numbered 3713 article’s 1 item’s title was changed via the item 1 in the proposed law. The title became terror explanation. Such a regulation was carried out since terror organization or organization’s explanations are in the Turkish Penal Code (TCK).

Double standard in terror crime:

§        Item 2 of the proposed law was replaced by numbered 3713 article’s item 3 and terror crimes were arranged in this change. On one hand almost all clauses of Penal Code are arranged either “Terror Crime” or “Crimes that Committed with Terror Aim” on the other hand; “crime against humanity” that is in the same law was not included. This situation shows the reason why Turkey has not accepted International Criminal Court Status until that time. The mentality and double standard in the proposed law are completely seen.

§        Numbered 3713 article’s item 4 with its title was replaced by item 3 of the proposed law as a result of this change TPC’s nearly half crimes are regarded as crimes that committed with terror aim. A complete indefinite situation existed with the statement “if activity is carried out with the framework of terror organization’s activities”. Who will commit crime and how? What is criterion of crime with framework of organization’s activity? What is the definition and limit of terror organization’s activity? As it is seen that legality and being typical in crime are not considered. Moreover, place to investigate and prosecute can be changed according to security forces’ attitude. Any crime, “as a result of acceptance committed with terror aim”, can be subject to special investigation-prosecutions methods that are related with terror crimes. As crimes with terror aim is prosecuted, according to Criminal Procedure Code (CMK) 250, in special commissioned judges, legal judgement principle is not considered, too.

§        Numbered 3713 article’s item 5 was replaced by item 4 of the proposed law. This change was about exceeding the upper limit of punishment. Accepting such a change, exceeding the upper limit of punishment grounding the fight against terror, makes inequality deeper and opposition to law becomes rule. Consequently, criminal procedure code’s the most basic rule “crime and punishment are shown in the law” is also violated.

By means of the proposed law freedom of the press is limited seriously and pressure on the press is being constructed

Social Opposition is Silenced, Threatened

§        Numbered 3713 article’s item 7 was rearranged by item 6 of the proposed law. New indefinite type of crimes, “person, who takes part in terror organization’s activities will be punished as manager of organization”, occurred in this proposed law. Propaganda crime was arranged in a wider context without limiting by any rule. With regulation in the proposed law it is aimed to “KEEP SOCIAL OPPOSITION UNDER CONTROL AND SILENCED COMPLETELY. ABOLISH SELF-CONTROL OF POLITICAL PARTIES, SYNDICATES, ASSOCIATIONS, FOUNDATIONS, INTELLECTUALS, STUDENTS, HUMAN RIGHTS DEFENDERS AND EVERYBODY”.

TBMM (Turkish Grand National Assembly) Justice Commission shows its legal ground about numbered 4928 article’s item 19, which abolishes Prevention of Terrorism Act item 8. The legal ground is “When we look at regulations particularly clauses on basic rights-freedoms in the Fundamental Law; it is seen openly that at first basic rights-freedoms are brought into safety, then, if there is such a necessity, ”exception” clauses about limitation on basic rights-freedoms are seen. By means of extensive change of the regulation dated 03.10.2001 and numbered 4709 reasons to limit basic rights-freedoms were abolished, in the item 13 there are statements that basic rights-freedoms can be limited, without destructing its essence, only grounding Fundamental Law’s related items and these limitations cannot be contrary to the Fundamental Law’s mentality, secular principles of democratic society and Republic’s requirements, proportionality principles. Against the Fundamental Law’s item 13 and regulations, which are related to this item, there is an obligation in the interpretation of Fundamental Law’s item about any limitation on basic rights-freedoms that legal regulations cannot be contrary to democratic society order and proportionality principle. Moreover, reasons on limitation in the related item of Fundamental Law are in “exception” category, in other words this item cannot be interpreted in an extensive way.

Although there is such a statement that “After these determinations, Prevention of Terrorism Act item 8 that has limitation characteristic on item 26 (opinion expression and freedom of propagate) of the Fundamental Law. From now on, the item is not in the scope of the clause 2 of the item 26 of the Fundamental Law; via abolishing the item 8 in the Prevention of Terrorism Act there will not be situations that are contrary to basic rights-freedoms, in the item 14 of the Fundamental Law, principle and no possible to inattention for taking required measure, against unity of country-nation, by State.” This new regulation, which is more extensive that old item 8, without any change in the Fundamental Law shows that this regulation is like a civil coup. The statement, punishment for propaganda of the organization’s aim, in the proposed law shows openly that civil politic and social opposition are not desired, asked. This manner leads destruction to freedom of expression, organizing, making policy.

In the proposed law propaganda is accepted without depending on violence, force or threaten. Such a regulation is contrary to present Fundamental Law and European Convention on Human Rights.

Punishment against poster, banner, speech, slogan etc… in the aim of organization shows that all demonstrators will be under suspicion and punished after any demonstration. This situation means that right for meeting and demonstration is abolished.

Natural Judge (Natural Judge) Principle is being abolished

Fair Hearing, Right for Defence, Privacy Invasion, Right for Communication and Prohibition for Torture are being Violated:

With this proposed law there will be a regulation that is contrary to Supreme Court’s decision since the court abolished a similar clause of numbered 3713 article. The Supreme Court’ decision, dated 31.03.1991/18E, numbered 1992/20 K, this regulation regarded as contrary to the articles 10 and 36 of the Fundamental Law. Moreover, implementations about limitation on lawyer’s defence were also regarded as contrary to the Fundamental Law.

With this item of the proposed law; against organizing to commit crime telephone tapping, charging secret inspector, monitoring via technical devices become normal, no necessary for judge decision to carry out these implementations and all authorities are given to security forces. This situation indicates an absolute dictatorial regime. By this way there is a plan against privacy invasion and right for communication, holding a spy is being legitimized.

With this item of the proposed law, it is arranged that security forces members cannot be detained. Torture is being encouraged and becomes state policy rather than systematic. Putting this regulation into force once again, though it was abolished by the Supreme Court, will prevent fight against torture, extra judicial killing but encourage those who are responsible.

The Supreme Court abolished the cited decision grounding that public officials’ trial without detained are contrary to prohibition for torture in the items of 2. 10. and 17 of the Fundamental Law.

Life Imprisonment Turns into a Punishment that Equal to “Death Penalty”

§        Numbered 3713 article’s item 17 was rearranged by item 11 of the proposed law. In this regulation, there will be different implementations in executions; all principles of execution law are ignored in life imprisonment, possibilities for releasing with conditions are abolished. All of these implementations will bring “imprisonment to death”.

Being spy is being encouraged and legitimized

Atmosphere for Extrajudicial Killings

§        Authority for using weapon in disproportion and imbalance manner is given to security forces with item 15 of the proposed law and numbered 3713 article’s additional clause 2. The Supreme Court’s decision was ignored via this regulation. Extrajudicial killings are being legitimized, once again, by this proposed law. Life right violations will increase because of the proposed law.

§        The Supreme Court’s decision, dated 06.01.1999 and numbered 1996/68 E, 1991/1 K, states that this regulation was contrary to the Fundamental Law.

“First clause of the item 17, in the Fundamental Law, states that ‘Everyone has rights to live, protect-improve his/her spiritual and material existence’. The last articleof this item, in parallel with European Convention on Human Rights, states that ‘there are some exceptions regarding the first item. These situations are; execution of the death penalty, self-defence, detention-arrest, prevention from escape of an arrested or sentenced person, pressure of riot and killings under martial law-state of emergency atmospheres that allow to use weapon’.

The State is under responsibility to carry out any kind of precautions to protect life right that is quaranteed by this item. Authority, which is given by law, to use weapon can/should be possible under compulsory circumstances. In order to give authority for using weapon by security forces, there should not be allowed circumstances expect for the situations that are cited in the first item.

This item mentions, on one hand, only attemp to use “weapon” by perpetrators on the other hand; allowance to use “firearm” by security force members. Therefore, this item gives authority use firearm to security force members without investigation whether perpetrator has firearm or not and to paralyse via other methods that can be an unimportant-free from danger.

Actually, not to obey call for surrender and attempt to use weapon that are mentioned in the item, which is subject of the trial, are not compulsory situation to use firearm. In some situations, there can be possibilites that allow to carry out free from danger methods, which threaten perpetrators’ life less than other methods. To use “firearm” directly and nonstop without carrying out other methods causes to harm right for life.

Despite the definition, which says “The rule is contrary to the item 17 of the Fundamental Law” putting the same rule into force aims to legitimize using weapon and to speed executions.

In conculusion, if the proposed law will be accepted as law without any change Turkey will enter into new and dark era.