Briefing on Law No. 4744 "Mini-Democracy Package"
Turkey: Briefing on Law No. 4744 ("Mini-Democracy Package")
* News Release Issued by the International Secretariat of Amnesty International *
19 February 2002 EUR 44/012/2002 29/02
The following briefing summarises Amnesty International's concerns regarding Law No. 4744 (so-called "Mini-Democracy Package") adopted by the Turkish parliament on 6 February 2002. This law was passed to adjust some Turkish laws to constitutional amendments made in October 2001 in the process of preparing for EU accession.
While the organization welcomes some elements of this law, it remains concerned that the law falls short of Turkey's international human rights obligations and that the Turkish government has not introduced sufficient safeguards for freedom of expression and effective measures against the persistence of torture in custody.
Still no guarantees for freedom of expression
Four articles in Turkish law, related to freedom of expression, were amended by Law No. 4744. Three of these articles have been notorious in the past through their use to bring dissidents before a court or into jail.
For example, Article 8 of the Anti-Terror Law carries prison terms of between one and three years for so-called "separatist" propaganda without advocating violence. Instead of using this opportunity to abolish this article, the Turkish parliament has broadened its scope and increased penalties. In addition to "written and oral propaganda with the aim of violating the indivisible integrity of the state with its territory and nation", visual propaganda will now also be punishable by one to three years' imprisonment if "the act does not require a heavier penalty" (the last quote is a new addition under Law No. 4744). A further addition to the legislation is: "If this act is committed in a form that encourages the use of terrorist methods the sentence will be increased by a third." This not only increases the sentence but also clearly indicates that "separatist" propaganda will be penalized even if the use of violence is not advocated. The academic Fikret Baskaya remains in prison since June 2001, sentenced under Article 8, for writing an article on the Kurdish issue.
Article 8 has come under criticism from the EU and other members of the international community, and thus has been less often applied in recent years. However, human rights defenders, politicians, writers, journalists and many others who have expressed dissident views on the Kurds or Islam have increasingly faced trials and convictions under Article 312/2 of the Turkish Penal Code, which carries prison terms of between one and three years for incitement to enmity and hatred based on religious, ethnic, social or regional difference. On one hand, the new law has narrowed the use of this article by introducing the condition "that the incitement was done in a form that could endanger public order" (previously this condition was a reason for an increase of the sentence). Amnesty International welcomes this amendment, but remains concerned that the wording is still too broad, allowing courts to continue to interpret the article in a way which contradicts Turkey's human rights obligations. Also, the law introduced "insulting a segment of the population or people's honour" as a new offence.
Amnesty International also welcomes the narrowing of Article 7 of the Anti-Terror Law, which carries sentences of additional one to five years' imprisonment for helping organizations or making propaganda for illegal organizations "even if these activities constitute another crime". This article has been narrowed by the introduction of the condition "in a form that encourages the use of terrorist methods". However, the definition of terror in the same law is very broad and has not been amended.
Another article that has frequently been used to prosecute human rights defenders is Article 159 of the Turkish Penal Code. Since 21 March 2001, women and men -- who denounced rape in custody at a conference held in June 2000 -- have been on trial charged with having insulted the security forces. Amnesty International is disappointed that the scope of the article was not altered. The only change was the reduction of the maximum sentence from six to three years' imprisonment. Since the maximum sentence has rarely been applied, this change seems to be insignificant in practise.
Amnesty International repeats its urgent call to the Turkish authorities for a thorough review of Turkish law and the country's constitution in order to lift all restrictions on the right to peacefully express opinions and in order to prevent the law being interpreted in such a way as to extend such restrictions. All prisoners of conscience should be released immediately and their rights reinstated.
Still no safeguards against torture
Torture remains widespread and systematic in Turkey, despite the country's international obligations. One of the factors contributing to the persistence of torture is the long detention by police or gendarmerie, together with the ongoing practice of incommunicado detention for people suspected of committing crimes that fall under the scope of State Security Courts. These detainees could until recently be held for up to seven days in police or gendarmerie custody and -- in the Region under State of Emergency -- for up to 10 days.
Following the constitutional amendments in October 2001, Law No. 4744 reduced the maximum length of police and gendarmerie detention before detainees are brought before a judge to four days. In the Region under State of Emergency, this four-day period may be extended to seven days upon the request of the prosecutor and the decision of a judge.
Amnesty International welcomes this amendment which seeks to ensure that people deprived of their liberty will be brought before a judge within four days, in accordance with international fair trial standards. However, the organization considers that the amendment falls short of Turkey's obligations to introduce safeguards against torture.
Amnesty International is publishing a report documenting torture cases related to the persistence of further prolonged police and gendarmerie detention, which are occurring even after the constitutional amendment entered into force. This prolonged detention is still legally possible under Legal Decree No. 430 for the Region under State of Emergency and this decree has not been abolished or amended.
Law No. 4744 has also reduced the length of incommunicado detention, that is when the detainee has no contact to people from the outside world such as relatives and lawyers. Previously, such detainees suspected of crimes in the scope of State Security Courts could only see a lawyer after four days: now the period has now been reduced to 48 hours. Since in the majority of reported cases, torture apparently occurs within the first 24 hours of police or gendarmerie detention, the amendment is clearly an insufficient step to effectively combat torture. Amnesty International has also repeatedly documented that, in practice, incommunicado detention is often even longer.
The UN Special Rapporteur on torture and the European Committee for the Prevention of Torture have clearly stated that detainees should only be held in custody for up to four or seven days if they have prompt access to a lawyer, possibly of their own choice, and if such an extension of police custody is ordered by a judge, before whom the detainee should be brought in person.
Amnesty International urges the Turkish authorities to abolish incommunicado detention in law and to introduce clear guidelines to ensure that all detainees have, in practice, immediate access to legal counsel. In addition, detention should only be extended after a judge has seen the detainees personally and made sure that they are not being tortured or ill-treated.
For more information please see: Turkey: Torture and prolonged detention in the Region under State of Emergency, February 2002, AI Index: EUR 44/010/2002 Turkey: Constitutional amendments - Still a long way to go, January 2002, AI Index: EUR 44/007/2002 Turkey: An end to torture and impunity is overdue!, October 2001, AI Index: EUR/072/2001
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