ANOTHER BATTLE FOR REFORM

“There is nothing more difficult to carry out, nor more doubtful of success, nor more dangerous to handle, than to institute a new order of things.”
~ Niccolo Machiavelli.

A piece of new came out last week about the Turkish Anti-Terror Law. Even though it came from the UN, and thus it is arguable whether or not the statement will have any real effect, it was good to see it because it does expose another aspect of Turkey’s faulty legal system. Here is a report from AFP, in its entirety, as carried by The Daily Star:

ANKARA: Turkey’s definition of terrorism is too broad and may lead to the prosecution of people with no direct involvement in terror acts, a UN envoy said here Thursday. Speaking at the end of a one-week fact-finding mission, Martin Scheinin, the UN special rapporteur on human rights and counterterrorism, singled out for criticism an anti-terror act, passed in 1991, aimed in particular at quelling a bloody Kurdish rebellion in the country’s southeast.

The law, he said, is too broad and vague with respect to local terrorist groups and fails to adequately address the international struggle against terrorism.

It “defines terrorism based on its purpose or aims rather than referring to specific criminal acts,” he said. “This may lead to a situation where people are convicted for terrorist crimes without sufficient connection to acts of terror.”

Scheinin estimated from his findings in Diyarbakir, the main city of the predominantly Kurdish southeast, that “only a small number of charges of terrorism relate to actual acts of terror.”

Eager to boost its bid to join the European Union, Turkey has several times amended its anti-terror laws, in particular easing punishments for the press and introducing compensation for Kurdish villagers who have suffered losses in army operations.

The security forces, however, have complained that democratization reforms in the anti-terror act and the penal code are hampering efforts against terrorism and other criminal acts.

Scheinin charged there was “lack of transparency and clarity” about how Turkish groups are classified as terrorist.

“We got estimates that their total number is maybe 40 or 50, but still it remains unclear where the list ends,” he said.

Besides Kurdish militants, extreme-left and Islamist underground groups are also active in Turkey.

Scheinin offered to help Ankara reform its anti-terror legislation in line with international norms and urged the government to sign several multilateral accords guaranteeing civic and political rights.

He praised Turkey’s progress in improving human rights standards, but noted that it was yet to set up a fully independent body to probe allegations of torture and a mechanism involving civic groups to monitor places of detention.

A long-term solution to the Kurdish conflict, he said, should ensure that Kurds freely use their language and have access to education “through at least initial immersion in the mother tongue.”

The conflict has claimed some 37,000 lives since 1984 when the Kurdistan Workers’ Party, blacklisted as a terror group by Ankara as well as the EU and the United States, took up arms for self-rule in the southeast. – AFP

There is more info at Jurist and Jurist even has an archive section on legal news about Turkey.

The Anti-Terror Law went into effect in 1991, replacing certain sections of the old Turkish Penal Code (TCK) in order to more “effectively” handle communism, Kurdish nationalism and fundamentalism. The law also provided protection to the police, yet another example of how Turkish law is written to protect the state.

With the Anti-Terror Law, we see more of the same that we saw with the new and impoved TCK, meaning that the law is vague-by-design thus making it more convenient for wide interpretations. Everyone remembers the Pamuk scandal and interpretations of TCK’s article 301. Article 301 permitted an interpretation that allowed one to be prosecuted for denigrating such abstractions as “Turkishness,” with a harsher penalty for denigrating “Turkishness” outside of Turkey, something, I guess, that is akin to airing one’s dirty laundry in front of the neighbors.

UN remarks about the Anti-Terror Law really don’t do it justice, however, if you’ll pardon the pun. One really has to read it for oneself, which can be done here, in .pdf format. Let’s look at an example, from Article 7, item 2:

Those who assist members of organizations constituted in the manner described above or make propaganda in connection with such organizations shall be punished with imprisonment of between 1 and 5 years and with a fine of between 50 million and 100 million Turkish liras, even if their offence constitutes a separate crime.

What is the definition of making propaganda? Last August, Birol Duru of DIHA news and Daimi Açig of IHD were arrested for allegedly having video footage of members of a group allegedly linked to PKK. Apparently, Duru had been detained while investigating cannabis-trafficking, an investigation which allegations that a police chief was involved with the trafficking. In this case, the alleged possession of video footage of a forbidden organization under the Anti-Terror Law, was used as the reason to detain, arrest and charge the journalist. Duru was “provisionally released” at the end of December, 2005, but is still facing prosecution for alleged membership in PKK and, additionally, for “denigrating security forces.” This information is available at Reporters Without Borders.

In the case of Duru and Açig, there is the use of both the Anti-Terror Law as well as the new TCK, Article 301 to be specific. A similar problem is seen in the case of Roj TV, which has been accused of ties to PKK. In both situations, the question is one of differentiating between reportage of news and “making propaganda.” From another angle, what is the differentiation between a public discussion of the events of the 1980’s and ’90’s in Turkish-occupied Kurdistan or of current Kurdish issues, and “making propaganda?”

Last July, a Turkish commando was captured by PKK. He was treated well during his capture and his release was finally secured by a delegation of human rights workers. All members of the delegation, including the head of the Amed branch of IHD, the Turkish Human Rights Association, the leader of IHD, a Kurdish singer, a member of DEHAP, and others, were arrested after the commando’s safe release, charged with “making propaganda for a terrorist organization.” Is securing the release of a Turkish soldier “making propaganda?” Is reporting this release “making propaganda?”

Their case should be heard this week.

In January, the Turkish general staff came out against proposed reform:

Turkish armed forces Chief of General Staff Gen. Hilmi Ozkok has come out strongly against proposed changes to Turkey’s Anti-Terror Law, which would narrow definitions of terrorism, warning that terrorists would benefit from these changes.

Ozkok warned that the proposed changes would provide opportunities for Kurdish Workers Party militants. Ozkok said, “Turkey needs to determine and implement its measures according to its own conditions.” Ozkok stated his belief that the Anti-Terror Law should be updated as soon as possible and that Turkey must find the necessary political will to enforce the law. “If we have this will, then it will be easy to fight terrorists, he said.

While Ozkok believes that Turkey should adopt a law in accordance with current European Union legislation, Cumhurriyet reported that Ozkok claimed, “Some circles are supporting terrorism.”

Human rights lawyers have criticized current articles in Turkey’s Anti-Terror Law, particularly Article Six on “Publishing Statements of Terror Organizations” and Article Seven, “Terrorist Organization Propaganda” as opening the door to massive lawsuits.

Lawyer Hasp Kaplan, a specialist on freedom of thought and speech issues who has argued before the European Court of Human Rights, said that some aspects of the Anti-Terror Law are in conflict with the guarantee of freedom of expression found in the European Convention on Human Rights, Article 10, and could pave the way for lawsuits against Turkey in the ECHR. Kaplan said that Article Six is “an article that limits press freedom, that silences press contrary to its wishes without any criteria.”

There have been previous discussions on the Anti-Terror Law, in preparation for EU accession. Objections raised in 2003, by the Turkish general staff, included opposition to Article 8:

Article 8. (1) Written and oral propaganda and assemblies, meetings and demonstrations aimed at damaging the indivisible unity of the Turkish Republic with its territory and nation are forbidden, regardless of the methods, intentions and ideas behind such activities. Those conducting such activities shall be punished with a sentence of between 2 and 5 years’ imprisonment and with a fine of between 50 million and 100 million Turkish liras.

Later that same year, there was an amendment made to Article 8, but it still remains vague and can be interpreted according to the old Article 8.

Interestingly enough, on the day the UN statement was made, the following occurred:

On the same day when the U.N. envoy singled out for criticism an anti-terror act, passed in 1991, aimed in particular at quelling a bloody clash between security forces and members of the Kurdistan Workers’ Party (PKK) in the country’s Southeast, Hakkari gendarmerie officials told a parliamentary commission established to investigate recent bombings in the province that the PKK was responsible for a controversial Nov. 9 explosion in a Şemdinli bookstore owned by a former PKK member and that gendarmerie officials there at the time were about to go to the prosecutor’s office to share the information they had.

The commission heard the testimony of Hakkari Gendarmerie Commander Col. Erhan Kubat and Hakkari Gendarmerie Command intelligence chief Maj. Sefer Resuloğlu, who dismissed suggestions that the gendarmerie was responsible for the bookstore bombing.

Given the recent overuse of Article 301 of the TCK, as well as renewed special operations in “The Southeast,” I think it will be some time before anyone sees any significant change to the Anti-Terror Law, and those changes won’t come easily.

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