Identifier
Created
Classification
Origin
05ANKARA2840
2005-05-20 07:55:00
CONFIDENTIAL
Embassy Ankara
Cable title:  

AKP GOVERNMENT WEAKENS PENAL-CODE REFORM BILLS

Tags:  PGOV PREL PHUM TU OSCE 
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This record is a partial extract of the original cable. The full text of the original cable is not available.

200755Z May 05
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.

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.


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