Turkey: Strengthen Law Reform Bill
|Publisher||Human Rights Watch|
|Publication Date||25 March 2013|
|Cite as||Human Rights Watch, Turkey: Strengthen Law Reform Bill, 25 March 2013, available at: http://www.refworld.org/docid/5154173a2.html [accessed 26 May 2017]|
Strengthening a law reform bill currently before Turkey's parliament could significantly improve human rights and help bolster the peace process with the armed Kurdistan Workers' Party (PKK). The Parliamentary Justice Commission is examining the bill, the "fourth reform package," and parliament is expected to vote on it in the coming weeks.
"The fourth reform bill contains positive elements that could help curb unjustified prosecutions for nonviolent speech and protest, and facilitate accountability for torture," said Emma Sinclair-Webb, senior Turkey researcher at Human Rights Watch. "But the bill's contribution to reform and the peace process will be blunted unless Parliament's Justice Commission also narrows the crime of membership of an armed organization, and lifts the time limit for prosecuting state killings."
The draft law includes positive measures such as limiting the scope of the often misused charge of "making terrorist propaganda" and related offenses. However, it fails to revise or repeal the full range of legal provisions that restrict freedom of expression. Notably, it does not limit application of the charge of "membership of an armed organization," which is frequently used to jail Kurdish political activists and journalists.
The reforms include the positive measure of lifting the statute of limitations on investigations into torture. Preventing investigations and prosecutions from proceeding, because the time allowed by law for them to commence has passed, has been a serious issue for victims seeking justice for past crimes in Turkey. In its present form the bill would mean the statute of limitations still applies to investigations of unlawful killings by state agents, curtailing the possibility of justice for thousands for killings and enforced disappearances in the early 1990s in the southeast and in Turkey's main cities.
Free Speech and Assembly
The draft law contains 20 provisions to change various laws in response to the pattern of rights violations identified by the European Court of Human Rights in its many judgments against Turkey. The provisions aim to ease restrictions on speech and assembly that the Council of Europe, the European Commission, the UN, and human rights groups have criticized repeatedly.
The amendments would limit the severe restrictions on publishing or reporting statements by illegal organizations and the scope of the crime of "making terrorist propaganda." Reporting on and publishing statements by illegal groups would be criminalized as terrorist offenses only if they "legitimize or praise methods of force, violence or threats by terrorist organizations, or encourage these methods" (an amendment to article 6/2 of the Anti-Terror Law).
A similar amendment would restrict the scope of laws criminalizing activities counted as "terrorist propaganda" (article 7/2, Anti-Terror Law, and 220/8, Turkish Penal Code). A related reform to the Turkish Penal Code would permit a conviction for "praising criminal activities and criminals" only if the circumstances constituted a "clear and imminent danger to public order."
But the reforms leave unchanged article 314 of the Turkish Penal Code, "membership of an armed organization." Many of the thousands in detention for nonviolent speech and association – the majority Kurdish political activists but also journalists, trade unionists, and human rights activists – are charged with this offense rather than terrorist propaganda. They face prison sentences of at least seven and a half years if convicted.
An amendment to the law on "alienating the public from military service" (article 318, Turkish Penal Code) specifies that only statements or conduct that "encourage and inspire people to desert or not to participate in military service" should be criminalized. In the interests of upholding free speech and the right to conscientious objection, which Turkey does not legally recognize, this article should be repealed altogether.
"To really get at the injustice of prosecuting people for nonviolent speech and association as though they were terrorists, parliament needs to reform the membership offense," Sinclair-Webb said. "It will also be important to monitor how the reforms are carried out since prosecutors and courts will still have wide discretion to invoke 'incitement to violence' or 'public order' arbitrarily to prosecute dissenters."
Statutes of Limitations
Removing the statute of limitations on investigating and prosecuting the crime of torture (Turkish Penal Code article 94) is a positive move. The change offers an opportunity for accountability for acts of torture by security officials in the 1980s and 1990s, for which investigation and prosecution is barred under the current law.
The bill contains a significant omission when it comes to killings by the security services and other public officials, however. Under the present law in Turkey, the 20-year limitation period for investigations, is about to run out for thousands of cases involving execution-style killings and disappearances of civilians by state security forces in southeast Turkey and major cities in the period from1993 to 1996 at the height of the conflict with the PKK.
In repeated rulings the European Court of Human Rights has identified both a pattern of failure to conduct effective investigations into these killings as well as many substantive violations of the right to life under the European Convention.
A Human Rights Watch report identified the operation of the statute of limitations as a key obstacle to accountability for these crimes.
Prosecutors in Ankara have invoked the European Court judgments in decisions not to bar some old investigations into political assassinations despite the statute of limitations. In doing so, they have cited a failure to conduct effective investigations and the need to combat impunity. While this is a step forward, it would be preferable if the statute of limitations could never be invoked for killings involving state officials in the same way as for torture.
Human Rights Watch has argued strongly against the application of statutes of limitations for serious human rights abuses and has made the case in a legal opinion presented to the Justice Minister in January 2013 that a change in the law to lift the statute of limitations in these cases would allow for their future prosecution and would not violate the principle of legality in international law.
The fourth reform bill addresses the European Court's finding of a pattern of failure to conduct effective investigations in another way by proposing an amendment to re-open investigations on demand within three months of a European Court decision finding that no effective investigation was made in a particular case. While this is a positive acknowledgement of an endemic problem, current time-limits mean that the measure is insufficient in itself to secure accountability for serious human rights abuses in Turkey.
"The reform bill makes it clear that state officials involved in torture cannot wait out justice," Sinclair-Webb said. "It would be of enormous benefit to make it clear in law that the same is true for killings by suspected state actors.