US embassy cable - 04ANKARA5671

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. 
 
------------------------------ 
Experts, Diplomats Discuss Law 
------------------------------ 
 
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. 
 
------------------- 
Positive Amendments 
------------------- 
 
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. 
 
---------------------------- 
Articles Raising EU Concerns 
---------------------------- 
 
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