Turkey: Draft Reform Law Falls Short

A major legal reform package to be introduced by the Turkish government leaves key problems with free speech and arbitrary detention unresolved, Human Rights Watch said today. The draft package has been sent to the Parliamentary Justice Commission, and the government has indicated that it could become law in March 2012.

The introduction of the wide-ranging package comes in the wake of strong criticism from the European Union and Council of Europe. It includes measures aimed at limiting the high number of prosecutions of journalists, ending the suspension of publications for 15- to 30-day periods under the Anti-Terror Law, and partially addresses the problem of arbitrary detention and the high level of pretrial detainees in Turkey's jails.

"When it comes to tackling Turkey's big human rights challenges, this reform package is little more than window dressing," said Emma Sinclair-Webb, Turkey researcher at Human Rights Watch. "If the government is serious about reform, it needs to be far bolder and abolish laws restricting free speech or clearly limit their application to those who directly incite violence."

The package of 88 articles makes important adjustments to a variety of laws pertaining to the administrative courts, financial regulation, bankruptcy, and corruption, in addition to provisions relating to human rights. But the amendments largely fail to address restrictions on freedom of expression and fair trial issues identified by the Council of Europe and the European Union, Human Rights Watch said. These concerns were addressed most recently in the European Commission's October 2011 progress report on Turkey and in July 2011 and January 2012 reports by Council of Europe commissioner for human rights, Thomas Hammarberg.

The proposed changes fail to reform terrorism laws widely misused against journalists and pro-Kurdish activists, Human Rights Watch said. One provision provides that courts would enjoy the power to suspend prosecutors' investigations or sentences handed down to journalists, but on condition that the journalists do not repeat their alleged offense, a condition that would amount to censorship.

A positive step and the clearest move to uphold media freedom in the draft law is a provision that would repeal article 6/5 of the Anti-Terror Law allowing prosecutors and courts to suspend for up to 30 days newspapers and magazines that are accused of certain offenses such as "making terrorist propaganda." In recent years, European Court of Human Rights rulings against Turkey have found the practice amounts to censorship and a violation of the right to freedom of expression.

A second positive measure aimed at protecting the rights of defendants in custody would require judges to justify decisions to prolong a defendant's pretrial detention or ongoing custody during trial by citing specific evidence as to why they should not be granted bail or released during pretrial detention or while on trial. This step responds directly to a repeated criticism of Turkish practices, which simply grant detention extensions without explanation, in European Court of Human Rights decisions.

Another amendment extends the use of bail or probation rather than detention for defendants facing trial for crimes with a five-year maximum prison sentence. This should cut down the widespread use of pretrial detention in Turkey, particularly for those charged with more minor terrorism offenses, Human Rights Watch said. The measure would not, however address the situation of hundreds of people facing sentences of five to ten years, such as journalists, charged with membership of an armed organization (article 314/2 of the Turkish Penal Code), a charge frequently leveled despite the absence of any evidence of their involvement in violence or in plotting violent activities.

In a move aimed at responding to international criticism about the unwarranted prosecution of journalists and editors, the draft law paves the way for the suspension of criminal investigations, trials or penalties for offenses "committed up to 31 December 2011 by means of the press or broadcasts or by means of other expressions of thought" that carry a maximum sentence of five years in prison. But again, this measure would not apply to journalists and editors charged with membership of an armed organization.

While suspending criminal investigations and sentences for violations of free speech is a positive move, the government has avoided taking the necessary step of repealing the large number of laws that are an unjustified restriction on free speech. And those whose cases are suspended must not reoffend for three years or face renewed prosecution or sanction for the original case.

"Telling someone unfairly prosecuted for speech that the charges will be dropped if they stay silent for the next three years sounds a lot like censorship." said Sinclair-Webb. "The law also fails to make clear that it applies not only to journalists but to all citizens, including demonstrators who frequently face prosecution for shouting slogans that incite no violence."

The draft law reduces the prison sentences for offenses under two articles of the Penal Code: halving the five- to ten-year sentence for offenses under article 220/6, and reducing by up to two-thirds at the court's discretion the same penalty for offenses under article 220/7. These two articles are frequently used to charge individuals with terrorism although the individuals are neither members of a terrorist organization nor have committed any act that could or should be regarded as terrorism in terms of international law.

Reducing the penalty in this way means that those accused under those articles could be released from prison pending trial. But the law fails to revise the vaguely worded laws themselves, which as Human Rights Watch has documented, are widely misused against protesters, journalists, and pro-Kurdish and leftist political activists.

"Reducing the sentences helps address a consequence of these misused provisions" said Sinclair-Webb. "But until the government tackles the root causes by tightening the law so that it can only be used against those who directly participate in terrorism, it will continue to fall afoul of the European Court of Human Rights."

Human Rights Watch has concerns about the limited nature of various other proposed amendments in the reform package. One is a proposed revision to article 10/d of the Anti-Terror Law, which currently allows the courts to restrict access by defendants and their lawyers to their entire case file for the duration of a criminal investigation in situations in which the prosecutor and court decide that the security of the investigation may be endangered. The measure may be applied in cases in which defendants face terrorism charges.

The Council of Europe has recently raised concerns about the prolonged withholding of evidence from defendants at the investigation stage and the possibility that practice effectively deprives defendants of the opportunity to challenge the lawfulness of their detention. A proposed amendment to article 10/d would limit to three months any restriction on a defendant and his or her lawyer's ability to access records of the defendant's own statement and expert reports.

However, the proposal makes no mention of the right of the defendant to access the main evidence and other documents in the case file, without which it will remain difficult for a defendant to challenge the detention or enjoy the right to an effective defense.

"If the government is sincere about law reform to protect people's rights, then it needs to revise these proposed half measures and finish the job," Sinclair-Webb said.