US embassy cable - 04ANKARA261

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 000261 
 
SIPDIS 
 
 
DEPARTMENT FOR EUR/SE 
 
 
E.O. 12958: DECL: 01/15/2014 
TAGS: PGOV, PREL, PHUM, TU 
SUBJECT: GOT OVERHAULING CRIMINAL LAW SYSTEM 
 
 
Classified by Polcouns John Kunstadter; reasons 1.5 b and d. 
 
 
1. (U) Summary: An experts committee is conducting a thorough 
overhaul of three major Turkish laws that determine what 
constitutes a crime, how crimes are punished, and how the 
judiciary functions in criminal matters.  The committee will 
propose a wide range of reforms, including: eliminating rape 
laws criticized by women's rights groups as discriminatory; 
increasing punishments for torture; allowing judges to reject 
unsubstantiated indictments; and expanding prison 
rehabilitation programs.  The head of the parliamentary 
Justice Committee says he expects Parliament to adopt the 
revised laws by the end of 2004.  If the committee's texts 
are adopted relatively intact, the new laws will be as 
significant as any other GOT human rights reforms to date. 
End Summary. 
 
 
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Experts Committee Overhauling Laws 
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2. (U) A four-member experts committee of criminal law 
scholars is revising the Penal Code, the Execution of 
Punishments Law, and the Criminal Procedure Code.  The 
committee members -- Gazi University professors Cumhur Sahin 
and Izzet Ozgenc; Istanbul University professor Adem Sozuer; 
and Marmara University professor Ahmet Gokcen -- told us they 
are about halfway done with the project, which will result in 
a proposal to replace about 95 percent of the articles in the 
three laws.  The revisions are designed, in part, to bring 
Turkey's criminal law into conformity with the letter and 
spirit of the extensive EU-related human rights reforms 
adopted by Parliament over the past two years. 
 
 
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Legal "Minefield" Will be Cleared 
--------------------------------- 
 
 
3. (C) In addition, committee members say they will simplify 
what is now a complicated set of overlapping rules that even 
veteran trial lawyers find confusing.  The Penal Code, for 
example, will be reduced from 500 articles to about 300. 
Sahin said the redundancy of the laws undermines human rights 
reforms; each time Parliament revises an article considered 
authoritarian, creative prosecutors find another, similar 
article they can use to punish the same types of acts.  "The 
current system is like a minefield.  Because of the reforms, 
people think the field has been cleared.  But then they walk 
on it, and BOOM!" he said.  The revised Penal Code will 
supersede other laws in case of contradiction.  For example, 
the committee will remove a Penal Code provision allowing for 
a lifetime ban from politics.  The Election Law, which is 
outside the committee's mandate, also allows for such a ban. 
But because the Penal Code will take precedence, it will 
effectively nullify the Election Law provision. 
 
 
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MP: New Laws Should be Adopted This Year 
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4. (U) Koksal Toptan, chairman of the parliamentary Justice 
Committee, to which the experts committee is assigned, told 
us he hopes to have the revised laws approved by the Justice 
Committee before the July legislative recess, and adopted by 
the full Parliament by the end of the year.  He said he 
expects Parliament to adopt the revised texts without 
significant changes, noting that a subcommittee comprising 
three MPs from the ruling AK party and two from the 
opposition CHP has unanimously approved all revisions to 
date.  Former Justice Minister Aysel Celikel, who has 
maintained close contact with her former student Sozuer and 
who is a paragon of Ataturkist virtue, also told us she is 
hopeful the revisions will pass intact.  Justice Minister 
Cicek recently expressed to us a similar view. 
 
 
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Key Measures and Analysis 
------------------------- 
 
 
5. (U) The following is a summary and analysis of the key 
reforms being prepared by the committee: 
 
 
6. (C) Rape Laws: The committee will remove Penal Code 
articles on rape that EU officials and women's rights 
advocates have criticized as discriminatory and demeaning. 
The controversial articles include: rape is considered a 
"crime against society" rather than a "crime against the 
individual"; rape between spouses is not legally considered 
rape; rapists and kidnappers can avoid punishment if they 
marry their victims; and punishments for rape are greater if 
the victim is married, lesser if the victim is single, and 
even lesser if the victim is single and not a virgin. 
 
 
-- Analysis: Turkish women's rights advocacy groups protested 
vigorously when a previous revision of the Penal Code failed 
to remove these articles.  The articles are also frequently 
cited by Turkey's Eurocritics as evidence of the "cultural 
divide" that separates Turkey from Europe.  Although the EU 
has not raised the articles as part of its official dialogue 
with the GOT, EU officials and representatives of EU states 
have made their displeasure known.  During a December speech 
in Ankara, Hansjorg Kretschmer, head of the European 
Commission Representation to Turkey, singled out the articles 
for criticism, arguing that the Penal Code fails to 
"recognize and protect women's human rights."  A Danish 
diplomat told us that female parliamentarians in Denmark have 
insisted that Copenhagen oppose Turkey's EU candidacy unless 
these articles are revoked. 
 
 
7. (C) Indictments: In cases where indictments appear 
incomplete or dubious, judges will be given the authority to 
return the indictments to the prosecutor's office for 
completion, or to throw them out altogether.  Under current 
regulations, once prosecutors file an indictment a court must 
hold at least one hearing. 
 
 
-- Analysis: Turkish prosecutors often file harassment 
indictments, knowing they lack the evidence for a conviction. 
 Kurdish rights activists, journalists, non-Muslims, 
leftists, foreigners, and other perceived miscreants are the 
preferred targets.  For example, prosecutors repeatedly drag 
leaders of the Human Rights Association to court on charges 
of terrorism, but have never proven their case.  In one 
high-profile harassment case, the leaders of the Turkey 
branches of five German pro-democracy foundations were 
indicted on espionage charges in October 2002.  The principle 
evidence in the case was a book written by the late Necip 
Hablemitoglu, a conspiracy-obsessed, reportedly 
Russian-funded author not known for probity.  The case was 
dismissed in March 2003.  Many officials in the bureaucracy 
support these types of indictments, seeing them as a 
legitimate method for monitoring suspect groups.  The 
practice is built into the system -- the Court of Cassation 
awards points to prosecutors based on the number of cases 
they open, regardless of the final outcomes.  Having a high 
point total is an advantage in competing for promotions. 
Giving judges the authority to dismiss indictments will not 
make much difference at first, because judges tend to share 
the view that these unsubstantiated indictments are 
legitimate means of protecting the State.  But a new 
generation of judges with a different mindset could use this 
authority effectively. 
 
 
8. (C) Torture: Under the current Penal Code, torture is 
considered a single, distinct crime, though it often involves 
a series of separate acts.  The committee will revise the 
code so that, for example, a police officer could be charged 
separately with beating, threatening, and forcing a 
confession.  Currently, the maximum sentence for torture is 
eight years per victim, and most convicts sentenced to jail 
terms get two years.  Under the revised system, a defendant 
in a brutal torture case could be convicted separately for a 
number of acts and sentenced to 15 years or more. 
 
 
-- Analysis: Criticism of Turkey's handling of torture cases 
generally focuses on the fact that police defendants are 
rarely convicted and sentenced to jail terms.  This reform 
would address a lesser-known problem -- even when the courts 
do send police to jail their sentences usually do not match 
the magnitude of the crime. 
 
 
9. (U) Parole: Parole will be introduced, both as an 
alternative to jail terms and as a system for monitoring 
released convicts. 
 
 
-- Analysis: Under the current system, judges often suspend 
or postpone sentences when they do not want to incarcerate a 
convict, in which case there is no punishment at all. 
Introducing parole will give judges another option. 
 
 
10. (U) Prison Reform: A number of amendments will be made to 
improve prison rehabilitation programs.  Prisons will be 
required to provide more opportunities for education, 
training, and work.  Prisoners who participate in these 
programs will be allowed more time to socialize with other 
inmates, reducing the amount of time they spend in cells. 
 
 
-- Analysis: Turkey has nearly phased out its prison ward 
system, in which 30-100 inmates lived in a single ward.  The 
wards often fell under the control of organized crime or 
terrorist organizations.  In 2000, authorities removed 
hundreds of inmates from ward prisons and transferred them to 
small-cell F-Type prisons.  The new facilities resemble 
prisons in more developed countries, but leftist critics have 
claimed that prisoners are isolated and are not being 
prepared to re-enter society.  However, the Council of 
Europe's Committee to Prevent Torture, which regularly 
inspects Turkish prisons, has not raised serious concerns 
about the F-Type prisons. 
 
 
11. (U) Plea Bargaining: Plea bargaining will be introduced 
as an option for a broad range of crimes.  It is now used 
only for petty crimes. 
 
 
-- Analysis: The lack of a plea bargaining system for most 
crimes has been cited as a cause of the heavy judicial 
workload, which, in turn, slows the trial process.  Following 
his May 2003 U.S. visit, Constitutional Court President Bumin 
said he favored the introduction of plea bargaining. 
 
 
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Comment 
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12. (C) This project, launched by the AK government, is the 
most sincere effort Turkey has seen in decades to bring about 
fundamental human rights reform.  Unlike the seven 
legislative reform packages adopted over the past two years, 
these legal reforms are not strictly tied to EU accession 
requirements.  The committee members are an impressive group 
-- they are among the very few in Turkey who genuinely 
understand the importance of the rule of law and support 
Western human rights concepts.  According to Vahit Bicak, 
head of the Human Rights Presidency in the Prime Ministry, 
Justice Minister Cicek met with the four scholars after 
reading their public criticisms of an earlier effort to 
revise the Penal Code under the Ecevit government, which 
resulted in a draft panned by the Council of Europe.  Cicek 
later recommended that Parliament appoint them to the 
committee. 
 
 
EDELMAN