Gov’t defends 4th judicial reform package against criticism

March 08, 2013, Friday/ 17:02:00/ TODAY'S ZAMAN

The government has defended the fourth judicial reform package, submitted to Parliament on Thursday, against criticisms leveled by the opposition, saying that the other parties have never appreciated the progress made in the country so far.

Parliamentary Group Deputy Chairman Mustafa Elitaş of the ruling Justice and Development Party (AK Party) dismissed criticism by the opposition parties on Friday. “The opposition has never thanked us for what has been accomplished so far. Everything that is done from now on will probably also be criticized.”

The fourth judicial package, by making a clear distinction between those who are involved in terrorist activities and propaganda legitimizing violence and those who steer clear of violence and discourse urging violence, aims to do away with violations in the areas of human rights and fair trials as well as to prevent long detention and trial periods. Special emphasis in the package is placed on settling problems with freedom of speech in Turkey.

According to Akif Hamzaçebi, parliamentary group deputy chairman of the main opposition Republican People's Party (CHP), the new package introduces only minor improvements in the area of human rights violations but nothing in terms of freedom of expression. Noting that freedom of expression forms part of the title of the draft law presented to Parliament, he said at a press conference in Parliament on Friday that “freedom of expression, which appears in the title of the draft, should also be included in the package.”

The ECtHR found Turkey to have violated Article 10 of the European Convention on Human Rights (ECHR), which says “everyone has the right to freedom of expression,” in eight cases brought before it in 2012 out of 123 cases total. Hüseyin Çelik, deputy chairman of the ruling Justice and Development Party (AK Party), said on Thursday that the reform package aims to improve Turkey's record at the ECtHR, especially in terms of freedom of expression. “Declarations and articles that incite or [attempt to] legitimize violence and terrorism, coercion or threats would still be considered a crime,” he said. Çelik also noted that there are no journalists in jail solely on charges of disseminating propaganda for a terrorist organization as they are also accused of involvement in activities defined as terrorism by law.

The BDP made it clear on Thursday that it was not at all satisfied with the draft presented. “We are highly disappointed with the content of the package,” İdris Baluken, deputy head of the parliamentary group of the pro-Kurdish Peace and Democracy Party (BDP), said on Thursday.

The 22-article bill seeks to revise Sections 6 and 7 of Law No. 3713, also known as the Counterterrorism Law (TMK), such that “violence” or “incitement to violence” must be established by a prosecutor in a case before he or she may charge a suspect with disseminating propaganda for a terrorist organization.

The inclusion of a conditional clause in the bill will require prosecutors to satisfactorily present elements of a more precisely defined crime to a judge. The existing provisions to Article 6 of the law state that an offence, made orally or in print, that is deemed to be propaganda for a terrorist organization is punishable by law. It bars the printing or publishing declarations or leaflets for terrorist organizations, without a criterion for the involvement of violence.

In the proposed version, “praising or legitimizing coercion, violence or threats or encouraging these methods” has been added. Similarly, changes are also proposed to Article 7 in the anti-terror bill, which stipulates that “any person who disseminates propaganda in favor of a terrorist organization shall be sentenced to a term of imprisonment from one to five years. If this offense is committed through the press or the media, the sentence shall be increased by half.”

Tarhan Erdem, a columnist for the Radikal daily and a former leading member of the Republican People's Party (CHP), finds the package important in that it would introduce for the first time the criterion of “obvious and imminent threat/danger” to the penal code. “After the draft is passed by Parliament, a person who praises a crime or those who commit one will be punishable only if such an act or discourse poses an imminent danger,” he wrote in his column on Friday, noting that the same criterion is used in democratic countries as an appropriate limit to freedom of expression.

While the government maintains that with the new package the boundaries of freedom of speech will be brought in line with the Council of Europe's standards, the BDP has harshly criticized the draft. “This package, about which much fanfare has been made, is devoid of content,” Hasip Kaplan, a BDP deputy, said on Thursday, maintaining that the draft would introduce new areas of abuse and penalties that would bring with them the prohibition of making politics altogether. “Don't try to deceive the public that you are introducing freedom of speech [with this package],” he added.

The BDP is concerned because quite a number of people from the Kurdistan Communities Union (KCK), an urban umbrella organization encompassing the terrorist Kurdistan Workers' Party (PKK), who are presently in jail were arrested under TMK Article 314, which addresses penalties for members of a terrorist organization, and the reform package does not include any amendments to this article. “Regarding penalties related to propaganda, the package, far from facilitating freedom of expression, contains some items which may serve to establish new crimes,” Baluken said at a press conference in Parliament.

The bill also eliminates a statute of limitations on crimes related to torture by adding a sub-clause to Article 94 of the present Turkish Penal Code (TCK), which deals with penalties for torture and maltreatment, that reads, “A statute of limitations is not valid regarding this crime.” The ECtHR considers a lack of action due to long trials as paving the way for wrongdoers to go unpunished and thereby a violation of the third article of the ECHR, inferring that an efficient investigation has not been conducted in such cases.

Orhan Kemal Cengiz, a columnist for both Today's Zaman and Radikal, considers the judicial package a positive step as it requires an element of force and violence to be included in discourse before it becomes punishable as terrorist propaganda, but he strongly believes the package fails to settle vital issues, such as criteria to establish who can be considered a member of a terrorist organization.

Noting that many a sympathizer of the terrorist PKK has been convicted as a member of the terrorist organization and that this practice only serves to convert an ordinary PKK sympathizer to a firm believer in the PKK, he wrote in Radikal on Friday, “Unless membership in a terrorist organization is properly defined [in the law], it will not be possible to prevent the judiciary from sending to prison whoever comes before it.”

Two-thirds of all cases in which the ECtHR has ruled against Turkey so far have been related to freedom of expression, with another 450 cases in this area presently pending.

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