AKP GOVERNMENT WEAKENS PENAL-CODE REFORM BILLS

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 002840 SIPDIS DEPARTMENT FOR EUR/SE E.O. 12958: DECL: 05/20/2015 TAGS: PGOV PREL PHUM TU OSCE SUBJECT: AKP GOVERNMENT WEAKENS PENAL-CODE REFORM BILLS WITH LAST-MINUTE AMENDMENTS REF: A. 04 ANKARA 261 ¶B. ANKARA 1600 (U) Classified by Polcouns John Kunstadter; reasons 1.4 b and d. ¶1. (C) Summary: Attorney contacts say a set of last-minute amendments being reviewed by Parliament would weaken penal-code related reform legislation that lawmakers originally approved in late 2004 to bolster Turkey's EU candidacy. The amendments curtail some of the rights of suspects and detainees established in the previous drafts. Law enforcement authorities demanded most of the changes, arguing that the previous drafts excessively curtailed the authorities of police. Our attorney contacts view the amendments as part of the broader drift in Turkey's EU candidacy since the December Summit. End Summary. -------------- Last-Minute Changes Demanded by Police -------------- ¶2. (U) The Turkish Parliament is currently reviewing a package of last-minute amendments to three draft laws that determine what constitutes a crime, how crimes are punished, and how the judiciary functions in criminal matters. Parliament approved the three laws -- the Penal Code, the Criminal Procedure Code, and the Execution of Punishments Law -- in late 2004 before the December EU Summit. The new laws brought Turkey closer to European standards in some, but not all, areas and their passage bolstered Turkey's image in the run-up to the Summit. ¶3. (U) The legislation was originally scheduled to take affect on April 1. But the laws came under heavy fire from law enforcement and the media in March, causing the GOT to postpone the effective date and prepare a set of amendments to address the concerns. The amendments have now been approved at the committee level and Parliament is expected to adopt them in time for the laws to take effect June 1. -------------- Attorney Views Amendments as Backsliding -------------- ¶4. (C) Adem Sozuer, an Istanbul University criminal law professor who helped prepare the original law drafts, told us he is "very unhappy" about the last-minute amendments, which he believes mark the GOT's first retreat in the EU legislative reform process. Many of the amendments curtail rights established in the drafts, and some are even regressive compared to current Turkish law, he said. �0A;¶5. (C) Sozuer, visibly discouraged, said he fears that the amendments reflect a deeper loss of momentum in the GOT reform effort. Nationalism is on the rebound amid growing doubts about the EU and fears about security threats arising from the situation in Iraq and increasing street crime. The ruling AK Party's (AKP) Islamist base is frustrated that its concerns over issues like the headscarf ban have not been addressed. Elements of the State are accusing the AKP of making concessions on Cyprus and getting nothing in return. In this political environment, Sozuer believes, AKP felt unable to resist the assaults on the reform legislation. -------------- Attorneys List Concerns -------------- ¶6. (C) Two other attorney contacts supported Sozuer's views about the amendments. Their concerns are summarized below: -- Police Detention: Currently, police can hold most suspects in detention for up to 24 hours before they are brought before a judge. The 24-hour period begins from the moment of capture. Under the amendments, this 24-hour period would exclude transportation time, which can be up to 12 hours. Our attorney contacts say this revised language effectively extends the detention period to 36 hours and opens the door for police abuse. Ramazan Er, spokesman for the Turkish National Police, averred to us that police often need the extra 12 hours in transportation time in order to properly question suspects. For example, he said, if a person is suspected of committing crimes in both Istanbul and Ankara, police need to take him to the crime scenes in both cities before bringing him to court. Sozuer, however, told us that under the law police are only supposed to question suspects, not take them to crime scenes. He said police want the extra "transportation time" in order to continue the dubious practice of transporting suspects to crime scenes and telling them to re-enact their alleged crimes. -- Trial Duration: The amendments would allow judicial authorities to hold suspects in arrest status for up to 13 years during their trial proceedings. The previous draft would have set a 5-year time limit. There is no time limit under current law. Sozuer said the European Court of Human Rights has ruled that four years and three months is an excessive period to hold a suspect under arrest. He averred that by extending the limit to 13 years Parliament would be supporting the practice of excessively long trials. -- Attorney Bans: Under the amendments, a judge would be able to bar an attorney from representing a client if the lawyer were under investigation for violating certain articles of the Penal Code. Our attorney contacts note that the relevant Penal Code articles include one against "protecting a criminal," a charge that could presumably be made against any defense attorney. They also point out that the opening of an investigation would be enough to justify barring an attorney from a case. -- Police Informants: The amendments would authorize police to remove "repentant" suspects from detention for up to 15 days if the suspects are willing to provide information. Sozuer called this article "very strange" and said it is not clear where suspects would be held during the 15-day period or what their legal status would be. Neither a prosecutor nor an attorney would supervise police during the 15-day period. -- Search and Seizure: Various articles of the Criminal Procedure Code regarding search, seizure, and wiretapping have been amended to allow police to act without the approval of a judge, and in some cases without the approval of a prosecutor. Several of the amendments state that if a judge is unavailable, a prosecutor can give authorization. In some cases, a police chief can authorize a search or seizure if neither a judge nor a prosecutor is available. Some of the articles require police to seek a judge's subsequent approval within 24 hours after taking action. Er tried to insist to us that police would only use these expanded authorities in cases where criminals are caught in the act and police do not have access to a judge. -- Attorney-Client Privilege: Under the amendments, criminals charged with organized crimes against the State would be denied the right to meet in private with their attorneys if authorities determine that such meetings present a security risk or would be used to send messages to an illegal organization. In such cases, a prison official would observe attorney-client meetings. Prison officials would also examine any documents exchanged between the attorney and his client and would determine whether to return them. -- Detainee Rights: The amendments would require police to inform detainees of their rights "after taking necessary measures to prevent the suspect from escaping or harming others." The previous version would have required police to read suspects their rights immediately. -------------- Police Official: "Changes Meet EU Standards" -------------- ¶7. (U) Er said the amendments will enable police to remain effective, while ensuring suspects' rights. If the previous drafts were implemented unchanged, "Turkey would become a paradise for criminals," he said. Er asserted that the amendments match laws found in the U.S. and EU states. ¶8. (C) Sozuer acknowledged that some of the amendments are similar to laws in Europe, but he argued that such comparisons are irrelevant. In some European countries judges and prosecutors have extensive powers on paper, but restraints of various kinds discourage them from abusing their authority. Turkey, by contrast, has both a legal system and a State tradition that encourages authorities to treat all citizens as suspects and all suspects as criminals. He said the aim of the reform process should be to adopt laws designed to address Turkey's shortcomings, not to copy blindly laws found in Europe regardless of whether they are appropriate for Turkey. -------------- Comment -------------- ¶9. (C) We were struck by Sozuer's downbeat mood during our conversation. We have kept in touch with him since January 2004, when he and three other criminal law scholars were still in the process of overhauling the three laws (reftel A). An optimist by nature, he has been an irrepressible advocate of the EU reform process, appearing regularly on TV debates and briefings for diplomats. He has always been candid with us when in the past Parliament made amendments that he felt weakened the drafts. But he maintained his faith that the process was moving forward. This time was different. He views the latest amendments, and AKP's acquiescence to them, as an element of the general post-Summit drift in Turkey's EU candidacy, and he is concerned that the drift could continue. ¶10. (C) Despite the last-minute setback, the three new laws on the whole will still improve current Turkish legislation in a number of areas (reftel A). There are even a few amendments that bring marginal improvements over the previous drafts. For example, Parliament addressed some legitimate concerns of the media (reftel B) by eliminating or revising some articles establishing jail terms for illegal speech. However, we share the concerns expressed by our contacts. The GOT earned credit for passing the laws before the Summit, but is now changing them for the worse. The EU appears not to have noticed this backsliding yet, but when it does Turkey's image in Europe will be further eroded. EDELMAN