The government-introduced bill that envisages harsher penalties targeting any dissident movement by extending the scope of offenses and granting extensive powers to the police, is being harshly criticized for posing a threat to basic rights and freedoms and harming state-citizen ties, reminiscent of the period of martial law that Turkey previously experienced.
The 35-article bill, which the Justice and Development Party (AK Party) endorsed late on Tuesday, envisages drastic changes in the Turkish Penal Code (TCK) and the Code on Criminal Procedure (CMK) and it represents a major regression on judicial reforms the government completed in line with the European Union accession negotiations.
Former Supreme Court of Appeals President Hasan Gerçeker criticized the draft bill saying that changing laws so frequently is not appropriate and such planned legislation creates distrust in society.
"When the political authority enacts laws on security matters, it puts pressure on the people. Even though such laws are intended to fight the terrorism threat, the result is the opposite, by providing a fertile environment for terror. As the citizens' regard for the state lessens, the tools of intimidation, the pressure and the terrorization find a way to flourish. Thus, the quagmire that is created through laws serves the terrorist groups and their ill-intentioned activities," Gerçeker warned.
The bill severely restricts the right of suspects and their attorneys to acquire information about the details of legal proceedings brought against them during the course of an ongoing investigation. The lack of access to the investigation file against their clients by the defense, either during the questioning by the police or the prosecutor, or during the arraignment hearings, will hamper the right to a fair trial or violate due process. The defense will only be able to see the evidence against suspects when the indictment is prepared and accepted by the court.
The bill provides new and expansive powers to the already-controversial system of penal judges of peace, which was hastily introduced following graft probes that went public on Dec. 17 and 25 and implicated senior government officials.
As the proposal by the government continues to draw fierce criticism from various segments of society, many have agreed that it paves the way for a police state, and the main opposition Republican People's Party (CHP) has announced that the party will appeal to the Constitutional Court for its annulment, if the bill is enacted.
CHP Deputy Parliamentary Group Chairman Akif Hamzaçebi said on Thursday that the 35-article planned legislation targets all segments of society, adding: "Even though the government pretends that it is targeting the [faith-based] Hizmet movement with the proposal, every citizen in Turkey is under threat. According to the draft, anyone might be considered a suspect by the security forces and might be exposed to a search. Society's right to oppose government-led policies should be secured. Those who oppose [President Recep Tayyip] Erdoğan and [Prime Minister Ahmet] Davutoğlu are portrayed as usual suspects."
Ergun Özbudun, a professor of constitutional law at İstanbul Şehir University, raised concerns regarding the proposal, stressing that it marked a real abandonment of fundamental rights and freedoms, taking Turkey back to darker days, in terms of these issues. “The right of self-defense is a basic right, but the new package overtly breaches this right,” Budun said.
Recalling the government-led improvements to fundamental rights and freedoms in 2004 and last February, Budun highlighted that each article should be examined carefully for potential rights violations.
Lawyer Muharrem Balcı likened the proposal's articles to the Hitler-era's suppressive practices and posted tweets on his Twitter account saying: "The authorities granted to the Penal Courts of Peace are reminiscent of the Gestapo and now their authority will be broadened with the proposal. The police will able to search anyone and any place on the basis of reasonable suspicion. The police's authority to chase and for surveillance are being broadened."
Mete Göktürk, former chief prosecutor of the now-dissolved State Security Court, slammed the government for acting hypocritically on the subject, saying: "In the wake of the Dec. 17 and 25 corruption scandals, the law regulating evidence was amended and the concrete evidence principle was added, but the current intended change revises the need for reasonable evidence for the arrest of people. To evade accusations regarding the corruption scandal, the government revised the evidence rules. Changes are being made repeatedly, in a cyclical manner, instead of for a real need. This is an unlawful approach."
Ahmet Gündel, a retired Supreme Court of Appeals prosecutor, also lashed out at the government for the package and underlined that the new judicial package does not benefit the judiciary, adding: "Lawyers' rights to access investigation files are being abolished with the new change. How can we defend our clients if we do not know the accusations directed at them, the evidence or documents? If lawyers are barred from accessing these files, then many defendants may remain detained or arrested in prisons. This is a source of great concern."
Regarding another article of the draft bill, which envisages lawyers who have worked for only two years being assigned as a prosecutor or a judge, Gündel stressed that appointing an inexperienced lawyer as a judge or prosecutor may result in grave mistakes when they rule.
"In the past, we faced such a move motivated by an ideological perspective during the period of former Justice Minister Mehmet Can and suffered a lot. We do not want to experience this situation again. Its results might be devastating, in terms of the judiciary," Gündel warned.
Associate Professor Mahmut Akpınar, from the department of politics and international relations at Turgut Özal University, emphasized that endowing certain courts and their judges with such broad authority is reminiscent of the independence tribunals that were set up in the 1920s to hear those who were against the establishment of the Turkish Republic, and many were executed.
"The separation of powers and justice cannot exist in an atmosphere where judges have evolved into civil servants of the government," Akpınar noted.
The term coined by Erdoğan, “New Turkey,” has also come under fire by some jurists who underline that the planned legislation is a reflection of the new Turkey and it will suppress rights and freedoms, violating the right to criticize the political authority's ill-managed policies.
Gov't creates monster that will ultimately eliminate itself
Lawyer Erdal Doğan raised his concerns, saying all the declared changes belong to the old Turkey, despite being labeled with the new Turkey tag. Elaborating on his comments, Doğan said: "Turkey is undergoing a period of an undeclared state of emergency. But there is the fact that there is a European Court of Human Rights [ECtHR]. I am sure that if the proposal is approved, the ECtHR will rule against the change. No country can be a member of the European Union with such legislation -- because such legislation is anti-law and contains fascist tendencies."
Lawyer Ergin Cinmen said that a de facto martial law is now being put into practice, adding: "The rule of law is now evolving into a security state, thanks to the removal of the concrete evidence principle for suspects. The Code on Criminal Procedure [CMK] is cyclically amended in accordance with the country's changing political agenda. Turkey is returning to its dark days in terms of the fair trial principle."
Lawyer İrfan Sönmez, a victim of the Sept. 12, 1980 military coup -- the unlawful practices of which no political authority in Turkey has managed to shed light on -- argued that the draft's content recalls Israel's actions such as confiscations and weakening the Palestinian people financially, which will result in people leaving the country.
"Suspicion is not a term to allow for the creation of a ruling. International law suggests that the suspicion element should be in favor of the defendant. Here in this draft, it is directed against the defendant. Thus, the law is based on suspicion instead of evidence. These practices resurrect dark practices of the Middle Ages."
Speaking to Today's Zaman about the discussion, Hayko Bağdat, a member of the Armenian community in Turkey and a columnist with the Taraf daily, accused the government of laying the foundations of the legal ground in its fight against certain civil society groups of the country.
"The Hizmet movement is ranked first on the government-targeted group list. The Kurdish political movements come second. But each individual is under threat in such a state order. The government is not learning lessons from the past. Such legislation and changes have served only to deepen and intensify the crisis the country is experiencing. Such laws serve to weaken the ties between the state and its citizens, as happened in the 1990s. So when the state exceeds its limit, intervening in other institutions or groups' works, a monster is created. But the AK Party government itself will be caught by the monster it has created after it loses power," Bağdat said.
Vahap Coşkun, a professor at Dicle University Law School who spoke to Today's Zaman, also reacted to the AK Party-led proposal, saying: "This planned legislation might be considered a 'reaction proposal.' However, such reaction proposals worsen the problem that the drafts intend to address."
Published on Today's Zaman, 16 October 2014, Thursday