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Analysis: Turkish penal reform woes
By Jonny Dymond
BBC correspondent in Istanbul
01 April 05
Turkey has again postponed the introduction of a revamped penal code -
just hours before it was due to come into force. The two-month delay
is all strangely redolent of the first parliamentary passage of the
code.
Last September and October all seemed set fair for the passing of a
new penal code to top off the extraordinary process of legislative
reform that Turkey has put itself through over the past four years.
The code was to be passed just before the European Commission issued
its final report on Turkey's fitness for entry into the EU - and the
new code was crucially important because the old one was so badly
riddled with sexual discrimination.
But then the new code hit a huge snag. Within it was a clause
proposing the criminalisation of adultery - and a row broke out.
Opposition
The government's critics accused it of backwardness and Islamism.
The EU made clear its displeasure.
And then, just as the measure was about to go to parliament, the
entire code was pulled. Surgery took place.
The revised code made no mention of criminalising adultery. Instead it
looked - and looks - like a thoroughly modernising measure.
Most dramatic are the changes made to the law as far as violence
against women are concerned.
Rape within marriage has been made a crime. Leniency for rapists who
marry their victims has been abolished. The difference between women
and girls in sexual assault cases has been abolished.
Provocation is no longer a defence in "honour killings" - the murder
of women accused of illicit affairs by their relatives.
Attacks on women that were once handled as attacks on the family or as
creating disorder in society, will now be treated as attacks on
individuals.
Discrimination outlawed
The statute of limitations for major corruption cases, especially
involving government and business, has been abolished.
PENAL CODE REFORM
Assaults on women will be more heavily punished
Rape in marriage recognised
Life terms for perpetrators of "honour killings"
Jail terms for the sexual molestation of children, trafficking of human
organs and the pollution of the environment
Tougher measures against perpetrators of torture
Corruption in government to be tackled
Proposal to criminalise adultery dropped
All laws will have to be in accordance with the international
agreements that Turkey is party to. Discrimination on religious,
ethnic and sexual grounds has been made a crime.
Privacy has been protected - the police will be punished for entering
homes without good reason, the interception of telephone calls and the
gathering of personal information restricted.
And heavy penalties have been introduced for environmental
destruction.
At the time there was some muttering about problems with the code -
that it was not clear in some areas and insufficiently progressive in
others.
But by and large it was welcomed as the sort of thing that would keep
the EU happy.
And it did. The Commission pronounced itself satisfied that Turkey had
met the criteria for memebership negotiations to start. And the member
states duly declared in mid-December that those negotiations would
open in October this year.
With a few months to ponder, it now looks as if the doubters had a
point.
Media anxiety
It is the media that are protesting now. They say that several clauses
are so vaguely worded that they are left open to legal action from
some of Turkey's rather zealous prosecutors.
In particular they point to a clause which bans publication of
material that might be contrary to Turkey's "fundamental national
interest".
An explanation of what this fundamental national interest might be
gives the example of "propaganda" promoting the withdrawal of Turkish
troops from northern Cyprus or acknowledgment of the heavily disputed
"genocide" of Armenians during World War I.
There are other problems too.
The old press law forbade criticism of certain state institutions; the
new penal code has a clause, albeit rewritten, that does much the same
thing.
And journalists believe that a clause on obscenity could be used
against them in ways which it is impossible to foresee.
For a couple of weeks now journalists have been demonstrating, arguing
and lobbying. Late last week Amnesty International weighed in,
expressing its concern. The government indicated some sympathy but
only now has made its move.
So this postponement looks - though it is never good to be too
confident about anything in Turkey's legislative process - as if it is
just that: a delay in implementation whilst the government and
parliament work out what to do with what many now say is a hastily and
badly drafted piece of media regulation.
Alarm bells may have been set ringing by the announcement of
postponement. The EU has said that it will monitor Turkey's human
rights situation all through the membership application process.
But this does not look like a step back. Instead it looks more like
the government taking time to reconsider, and perhaps acknowledge the
shortcomings of its original legislation.
By Jonny Dymond
BBC correspondent in Istanbul
01 April 05
Turkey has again postponed the introduction of a revamped penal code -
just hours before it was due to come into force. The two-month delay
is all strangely redolent of the first parliamentary passage of the
code.
Last September and October all seemed set fair for the passing of a
new penal code to top off the extraordinary process of legislative
reform that Turkey has put itself through over the past four years.
The code was to be passed just before the European Commission issued
its final report on Turkey's fitness for entry into the EU - and the
new code was crucially important because the old one was so badly
riddled with sexual discrimination.
But then the new code hit a huge snag. Within it was a clause
proposing the criminalisation of adultery - and a row broke out.
Opposition
The government's critics accused it of backwardness and Islamism.
The EU made clear its displeasure.
And then, just as the measure was about to go to parliament, the
entire code was pulled. Surgery took place.
The revised code made no mention of criminalising adultery. Instead it
looked - and looks - like a thoroughly modernising measure.
Most dramatic are the changes made to the law as far as violence
against women are concerned.
Rape within marriage has been made a crime. Leniency for rapists who
marry their victims has been abolished. The difference between women
and girls in sexual assault cases has been abolished.
Provocation is no longer a defence in "honour killings" - the murder
of women accused of illicit affairs by their relatives.
Attacks on women that were once handled as attacks on the family or as
creating disorder in society, will now be treated as attacks on
individuals.
Discrimination outlawed
The statute of limitations for major corruption cases, especially
involving government and business, has been abolished.
PENAL CODE REFORM
Assaults on women will be more heavily punished
Rape in marriage recognised
Life terms for perpetrators of "honour killings"
Jail terms for the sexual molestation of children, trafficking of human
organs and the pollution of the environment
Tougher measures against perpetrators of torture
Corruption in government to be tackled
Proposal to criminalise adultery dropped
All laws will have to be in accordance with the international
agreements that Turkey is party to. Discrimination on religious,
ethnic and sexual grounds has been made a crime.
Privacy has been protected - the police will be punished for entering
homes without good reason, the interception of telephone calls and the
gathering of personal information restricted.
And heavy penalties have been introduced for environmental
destruction.
At the time there was some muttering about problems with the code -
that it was not clear in some areas and insufficiently progressive in
others.
But by and large it was welcomed as the sort of thing that would keep
the EU happy.
And it did. The Commission pronounced itself satisfied that Turkey had
met the criteria for memebership negotiations to start. And the member
states duly declared in mid-December that those negotiations would
open in October this year.
With a few months to ponder, it now looks as if the doubters had a
point.
Media anxiety
It is the media that are protesting now. They say that several clauses
are so vaguely worded that they are left open to legal action from
some of Turkey's rather zealous prosecutors.
In particular they point to a clause which bans publication of
material that might be contrary to Turkey's "fundamental national
interest".
An explanation of what this fundamental national interest might be
gives the example of "propaganda" promoting the withdrawal of Turkish
troops from northern Cyprus or acknowledgment of the heavily disputed
"genocide" of Armenians during World War I.
There are other problems too.
The old press law forbade criticism of certain state institutions; the
new penal code has a clause, albeit rewritten, that does much the same
thing.
And journalists believe that a clause on obscenity could be used
against them in ways which it is impossible to foresee.
For a couple of weeks now journalists have been demonstrating, arguing
and lobbying. Late last week Amnesty International weighed in,
expressing its concern. The government indicated some sympathy but
only now has made its move.
So this postponement looks - though it is never good to be too
confident about anything in Turkey's legislative process - as if it is
just that: a delay in implementation whilst the government and
parliament work out what to do with what many now say is a hastily and
badly drafted piece of media regulation.
Alarm bells may have been set ringing by the announcement of
postponement. The EU has said that it will monitor Turkey's human
rights situation all through the membership application process.
But this does not look like a step back. Instead it looks more like
the government taking time to reconsider, and perhaps acknowledge the
shortcomings of its original legislation.