DESPITE FLAWS, NEW PENAL CODE MARKS SIGNIFICANT

C O N F I D E N T I A L SECTION 01 OF 04 ANKARA 005671

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 10/01/2014
TAGS: PGOV PREL PHUM TU
SUBJECT: DESPITE FLAWS, NEW PENAL CODE MARKS SIGNIFICANT
IMPROVEMENT

REF: ANKARA 261

Classified By: Classified by Polcouns John Kunstadter; reasons 1.4 b an
d d.


1. (U) Summary: The new Turkish Penal Code (TPC) adopted by
Parliament September 26 removes gender inequalities in laws
relating to rape and increases punishments for torture and
honor killings. However, the new Code maintains restrictions
against speech deemed "insulting" to the State. EU diplomats
and Commission officials in Ankara say the new law marks a
significant improvement, but they raise concerns in several
specific areas. A legal scholar who helped prepare the text
said parliamentarians made revisions scaling back some of the
"revolutionary" changes included in earlier drafts. As with
all other reform legislation, the GOT will face a challenge
putting what's on paper into fair practice. End Summary.

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Experts, Diplomats Discuss Law
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2. (U) Adem Sozuer, an Istanbul University professor of
criminal law and a member of the experts committee that
prepared the initial TPC draft (reftel),and Orhan Eraslan, a
member of the parliamentary Justice Committee from the
opposition Republican People's Party (CHP),discussed the TPC
October 1 with diplomats and EU Commission officials. The
following is a summary and analysis of key human
rights-related articles of the new Code.

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Positive Amendments
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3. (U) Rape: The new TPC excludes several articles on rape
from the previous Code that had been widely criticized as
discriminatory. Under the previous TPC, for example: rape
was considered a crime against society, rather than a crime
against the individual; rape between spouses was not legally
considered rape; rapists could avoid punishment if they
married their victims; and punishment for rape was greater if
the victim were married, lesser if the victim were single,
and even less if the victim were single and not a virgin.

-- Analysis: This is probably the single most significant
advancement in the new Code. The EU had insisted that these
articles be removed. A Danish diplomat told us that female
MPs in Copenhagen were outraged by the discriminatory nature
of these articles, and demanded that Denmark oppose the
opening of accession talks with Turkey unless they were
revoked.


4. (C) Torture: Sentences for torture are increased. In most
cases, the sentence will be 3-12 years imprisonment. Under
the previous TPC, the maximum sentence for torture was eight
years per victim, and most convicts sentenced to jail terms
got two years. The new TPC establishes increased penalties,
including life imprisonment, for aggravated torture involving
sexual abuse or resulting in permanent injury. Anyone who
fails to report torture (or other felony crime) will face a
jail term of up to one year, or 18 months in cases where the
victim is younger than 15. A public official who fails to
promptly report a felony will be sentenced to six months to
two years imprisonment, or up to three years if the guilty
party is a police officer conducting an investigation.

-- Analysis: This completes a series of reforms designed to
eliminate the climate of impunity for police who commit
torture by removing obstacles to the investigation,
prosecution, and punishment of torture. As the Council of
Europe's Committee for the Prevention of Torture recognized
in a recent report, the legal structure to combat torture is
now in place, but the GOT must follow through on
implementation. In spite of the legal changes, very few
police do time behind bars for torture. Until that situation
changes, the climate of impunity will remain intact.


5. (U) Honor Killings/Blood Feuds: Murders committed with a
motive related to "moral killing" or "blood vengeance" will
be considered aggravated homicides, and perpetrators will be
sentenced to life imprisonment.
-- Analysis: Courts have often meted out reduced sentences
for "honor killings" -- the killing by immediate family
members of women suspected of being unchaste -- and, to a
lesser extent, for murders related to "blood feuds,"
committed to avenge an insult. The vast majority of these
crimes occur among conservative, Kurdish families in the
southeast, or among migrants from the southeast living in
large cities. This amendment is designed to discourage
judges from accepting these traditions as mitigating
circumstances. Human rights activists have argued that the
language is not explicit enough to end the practice of
reducing sentences in honor killings. Eraslan acknowledged
that the implementation of this law will have to be
monitored, and the law amended if it proves ineffective.
Ultimately, he said, it will take years of improved education
as well as social and economic development to end these
tradition-rooted crimes.


6. (U) Statute of Limitations: The statute of limitations for
various types of crimes are extended; in most cases, they are
doubled. The maximum limit is increased from 15 years to 30
years.

-- Analysis: In the Turkish legal system, a case must be
tried to conclusion, including all appeals, before the
statute of limitations expires, or else the trial ends
without a verdict. This is particularly problematic because
the clock begins ticking at the time the crime is committed,
not at the start of the investigation or trial. In torture
cases involving police, a common defense strategy is to delay
proceedings until time runs out. This amendment will make it
more difficult to avoid a conviction by running out the clock


7. (U) Alternative Sentencing: Courts may replace short-term
imprisonment with alternative sanctions, such as: fines;
victims' compensation; mandatory skills/professional
training; temporary restriction of movement; temporary loss
of driving privileges; temporary ban from profession; and
community service.

-- Analysis: Judges often suspend or postpone sentences for
misdemeanor crimes, partly in order to relieve the
overburdened penal system. This amendment is designed to
provide more options so that fewer convicts go unpunished.


8. (U) Freedom of Religion/Belief: Anyone who forces another
person to declare, or change, his religious, political,
social, or philosophical belief, or who prevents another
person from expressing or spreading such beliefs, will face
1-3 years imprisonment.

-- Analysis: Turkish identity cards include a religious
designation that citizens are not permitted to leave blank,
which would appear to violate the new law. Sozuer said the
GOT will issue new cards in the coming months that will not
include a religious designation. In theory, this law should
discourage authorities from arresting non-Muslims for
performing missionary work, such as handing out bibles, or
for gathering for worship. However, local officials are
likely to resist this law at the implementation stage.

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Articles Raising EU Concerns
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9. (C) Insulting the State (Articles 299-301): Several
articles prohibit speech deemed "insulting" to the
Government, the State, or its institutions and symbols.

-- Analysis: These articles are carried over from the
previous TPC. They are often used by prosecutors to
discourage criticism of the State; the vast majority of these
cases end in acquittal, but often not until after months of
deliberations. Sozuer said he and others on the drafting
committee made every effort to radically alter these
articles, but could not persuade MPs.


10. (U) Actions Against the State (Article 305): Anyone who
receives payment from a foreign citizen or institution to act
against the national interest will face up to 15 years
imprisonment.

-- Analysis: The problem with this article is not the law
itself, but the "reasoning" attached to it. In the
reasoning, propaganda aimed at promoting the withdrawal of
Turkish troops from Cyprus, or in support of claims that a
genocide was committed against Armenians under the Ottoman
Empire, are cited as examples of acts that could violate this
law. The Greek Cypriot and Armenian American press has
criticized this article, incorrectly reporting that these
examples are part of the TPC itself. The reasoning is an
attachment to the law; it does not have the status of law or
regulation, but provides guidance to judges on how to
implement the law. Sozuer said the controversial language is
a leftover from an old TPC draft prepared several years ago.
He averred that the GOT will eventually have to amend the
reasoning.


11. (C) Discrimination (Article 122): The TPC prohibits
discrimination based on race, language, religious faith,
nationality, color, gender, political/philosophical beliefs,
national or social background, or economic and social status.

-- Analysis: The EU requires that "sexual orientation" be
added to the list. A Danish diplomat told us the GOT
maintains that the current language protects against
discrimination based on sexual orientation, though it is not
explicitly mentioned. However, the diplomat said the EU will
require the GOT to amend this article during the accession
process, though it will not affect the decision in December
on whether to set a date to begin accession talks. Sozuer
said sexual orientation was among the categories listed in
the original draft, but AKP deputies removed it.


12. (U) Sexual Intercourse with Minors (Article 104): Anyone
engaging in sexual intercourse -- without the use of force,
threat, or deceit -- with a juvenile who has completed 15
years of age will face a prison term of six months to two
years upon complaint.

-- Analysis: The EU considers this extreme, given the age
limit and the lack of force or coercion.


11. (U) Defamation (Article 125): Anyone who makes an
allegation damaging another person's honor, reputation, or
dignify will face a prison term of three months to two years.
In certain cases, including the defamation of public
officials, the sentence will not be less than one year
imprisonment.

-- Analysis: EU contacts are concerned that the clause
relating to public officials will restrict political debate.


12. (C) Religious Officials (Article 219): Imams, priests,
rabbis, and other spiritual leaders will face prison terms of
one month to one year for "reproaching or vilifying" the
government or the laws of the State while performing their
duty. In cases where religious leaders incite others to
disobey the law, the penalty will be a jail term of three
months to two years and a ban against holding public office.

-- Analysis: Eraslan said CHP insisted on including this
article in order to protect against those who would use
religion to undermine the State. Sozuer, who shook his head
while Eraslan said this, told us later that, as a consequence
of this article, "There is no freedom of speech for religious
leaders." This article is particularly troubling given the
nationalistic outrage over public comments made by Ecumenical
Patriarch Bartholomew I on religious reform and Turkey's EU
candidacy.


13. (U) Religious Garb/Arabic Script (Article 222): Anyone
violating laws against the unauthorized wearing of religious
garb or use of the Arabic script will face 2-6 months
imprisonment.

-- Analysis: This article is not new. However, the ruling AK
Party was hoping to remove it from the TPC. EU diplomats
consider this article a restriction on free expression.


14. (U) Genital Examination (Article 287): Genital
examinations conducted in connection with rape investigations
can be carried out only with the authorization of a judge or
prosecutor. Anyone ordering an examination without such
authorization faces three months to one year imprisonment.

-- Analysis: EU officials say the consent of the victim
should be required for these examinations.

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Comment
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15. (C) With this new Code, the GOT has added to the list of
legal amendments bringing Turkey closer, on paper, to EU
human rights standards. However, elements of the bureaucracy
opposed to the reforms have consistently delayed and
undermined implementation of reform legislation, and are
certain to work against the changes in this Code.


EDELMAN