US embassy cable - 05ANKARA2840

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. 
 
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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. 
 
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Attorney Views Amendments as Backsliding 
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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. 
 
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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. 
 
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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. 
 
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Comment 
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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