2002 Appendices

• Abbreviations
• Legal Background

In 2002 and at the beginning of 2003 a total of 5 packages called adjustment or harmonization laws on the way of Turkey’s entry to the European Union were enacted. All these laws have numbers and are usually called “Law on Amendments to some Laws”. In Turkey laws usually enter into force on the day they are published in the Official Gazette. Unfortunately, we were unable to locate official translations of these laws and, therefore, have preferred to present official comments on the changes. In one case, the most important package 3 of August 2002, we have found an unofficial translation and included it in the appendices. You can also find a detailed comment of the HRFTHuman Rights Foundation of Turkey on the legal changes (including the changes to the Constitution, enacted in 2001).

• Package 1: Law 4744 of 19 February 2002
• Package 2: Law 4748 of 9 April 2002
• Package 3: Law 4771 of 9 August 2002
• Package 4: Law 4778 of 11 January 2003
• Package 5: Law 4793 of 4 February 2003

HARMONIZATION LAW (1)

President Ahmet Necdet Sezer approved the amendments to Articles 312 and 159 of the Turkish Penal Code (TCK), along with a series of other changes on February 18. The new forms of Articles 312 and 159 are part of the reform package aiming to bring Turkey closer to membership talks with the EU.

On Feb 6, 2002 Parliament passed the Harmonization Law which is widely known as the “mini-democracy” or “reform package”.

The revised Article 312 reads as follows: A person who openly lauds a crime or who incites people to violate the law will receive a prison term ranging from six months to two years. Prison terms of 1-3 years will be given to individuals who incite hostile feelings or hatred in people by emphasizing differences based on social class, race, religion or region in such a way as to endanger law and order. In addition, a person who insults a certain sector of society or harms human dignity will receive the same punishment. If these crimes are committed using the media, the punishment will be two-fold. The bill also lifts fines for such crimes stipulated in the existing Article 312.

Article 1 of the Harmonization Law which proposes amendments to TCK Article 159 was approved again with a unanimous vote in Parliament. The text of Article 159 was passed intact but punishment stipulated therein was amended.

Under the article, those who openly vilify the laws of the Republic of Turkey or Parliamentary resolutions will be given prison terms ranging from 15 days to six months. If such a crime is committed in a foreign country by a Turkish citizen, then punishment is increased by one-third to one-half. In addition, under the new arrangement, the heaviest punishment was reduced from six years to three, and all fines were lifted.

Article 3 of the Harmonization Law brought amendments to Article 7 of the Anti-Terrorism Act. The law states, Those who aid members of a terrorist organization or spread terrorist propaganda will be sentenced to prison terms ranging from 1-5 years or else fined 500 million-1 billion TL.

Article 4 of the Harmonization Law resulted in amendments to Article 8 of the Anti-Terrorism Act, which covers propaganda against the indivisible integrity of the state. The law reduces the minimum prison term imposed on those who spread propaganda with the aim of harming the indivisible integrity of the state and nation of the Republic of Turkey from 2 years to 1 year, and the maximum level from 5 to 3 years.  The minimum fine to be imposed for these crimes has been increased twenty-fold to 1 billion TL, and the maximum level has been increased thirty-fold to 3 billion TL.

The law also alters the following passage, with the aim of harming the indivisible integrity of the state and nation of the Republic of Turkey irrespective of the method, purpose or thought to, with the aim of harming the indivisible integrity of the state and nation of the Republic of Turkey. In addition, if propaganda aimed at harming the indivisible integrity of the state is published in a periodical, as stipulated in the Press Law, the fine imposed on the periodical will be reduced. The current regulation imposes a fine amounting to 90 percent of the approximate sales revenues of the periodical in the previous month, but the law will reduce this.

The law has an additional paragraph to Article 8 concerning crimes of propaganda where punishment is stipulated for such propaganda if it is spread through published articles or through other mass media. With this paragraph, the law imposes prison terms from 6 months to 2 years or fines of 1 billion-3 billion TL for people who disseminate propaganda through mass media. In addition, the law states that the court can ban radio and television broadcasts for periods of 1-7 days.

The law also includes a provision which increases punishment by one-third for crimes of propaganda aimed at harming the integrity of the state and nation through the publication of this propaganda in periodicals or other mass media.

Articles 5, 6 and 7 of the Harmonization Law amended the State Security Court (DGM) Law and Code of Criminal Procedure (CMUK). Under the law, the custody period for crimes committed by more than three persons, which currently can be extended to seven days upon the request of the prosecutor and a court decision has been reduced to four days. This four-day custody period can be extended to up to seven days in regions under state of emergency rule by the request of the prosecutor and a court decision.

In addition, under the amendment, the judge is obliged to hear the testimony of individuals held in custody. The suspects also have the right to meet with their lawyers any time they wish.

The law which amended CMUK Article 107 stipulates that the relatives of detainees will be informed without delay about the detention and any extension of detention periods. Suspects also have the right to inform their relatives or other persons they choose regarding their detention.

Text found at: http://www.byegm.gov.tr/on-sayfa/uyum/uyum-ing.htm

HARMONIZATION LAW (2)

President Ahmet Necdet Sezer signed into law on April 8, 2002, a nine-article harmonization package effecting a series of amendments as part of Turkey’s ongoing harmonization with European Union norms. The bill Sezer signed had been passed by the Turkish Grand National Assembly (TGNA) on March 26, and it should bring Turkey closer to full EU membership negotiations.

One article of the bill states that only chief administrators can act to represent head officials.

Another article makes changes to the country’s Press Law as per the government’s proposals to this effect. The article covers conditions under which books and publications, which threaten certain national values, can be confiscated. Added to the list of offenses that justify corrective action – a list which already includes threatening the indivisible unity of the state and nation, national security, public order or public morality – are crimes against the founder and the first president of the Republic, Mustafa Kemal Atatürk, and his reforms.

Printing presses and related equipment may be confiscated if the publications issued there from constitute a threat to the unity of the Turkish nation and state or to the Republic’s principles or national security.

Another of the bill’s articles states that compensation fees mandated by rulings of the European Court of Human Rights (ECHR) for torture or mistreatment will be due from the individuals who commit such crimes rather than from the Turkish state.

The bill also makes changes to the Political Parties Law in line with an amendment to the Constitution, which would make closing a political party more difficult.

Under the article in question, possible sanctions against parties would include wholly or partially cutting off any state assistance they receive, in addition to outright banning, depending on the gravity of their crimes. Such cuts in assistance would not be less than half of their total sum given. Political parties which have already taken all of the state aid before the sentence is handed down can be asked to return the funds, subject to punishment by to the Treasury if they fail to do so.

The Constitution’s article regarding parties, which are “a focus” for certain offenses, is reflected in the bill’s amendments to the Political Parties Law.

Under the new arrangement, a political party is considered such a focal point in cases wherein actions considered crimes are committed intensively or decisively by the party organs or its members, and in cases in which these actions are adopted clearly by the party’s general congress, leader, decision-making organs, or executive boards or during the party’s group meeting in TGNA.

Under the arrangement, the Supreme Court Prosecutor's Office will also monitor and control the activities of the political parties.

Another article makes amendments to the Associations Law thereby stipulating that any individual who is over 18 years of age and who fulfills the necessary requirements will be able to establish associations. But those who commit crimes against the state or who are convicted of such crimes as embezzlement, bribery, fraud, or robbery will not be able to establish associations, notwithstanding if they benefit from an amnesty.

Those who are convicted under Article 312 of the Turkish Penal Code (TCK), which covers the crime of “provoking people to hatred and enmity by discriminating among them with respect to social, racial, linguistic, religious, regional or class differences,” cannot found associations for five years following their conviction for such crimes.

Associations cannot use the emblem, sign or symbol of a banned political party or association, or the flag, emblem or signs of former Turkish states.

In line with amendments to the Civil Law, associations are also empowered to form federations and confederations.

Associations will also be able to invite members of associations from foreign countries on the condition that they inform their local governor's offices beforehand. Associations can also take part in meetings of associations abroad.

Under the article, associations will carry out their official procedures in Turkish.

The bill also makes amendments to the Law on Meetings, Demonstrations and Marches. Under these changes, the age at which one can take part in organizing meetings is reduced from 21 to 18. A board comprised of at least seven people can organize protest marches or meetings. People who have diplomatic immunity can neither be the leader nor a member of the regulatory board of meetings or demonstrations.

Authorized state bodies are charged with the responsibility of making decisions about the organization of meetings and protest marches of legal groups such as trade unions, associations and political parties.

Regional governors, governors and head officials can ban or postpone certain meetings for a period not to exceed two months in order to protect national security, public order, general health, general morality and the rights and freedoms of others, or to prevent crimes.

Regional governors are authorized to postpone any kind of meetings in cities and towns under his/her purview for three months for the above-mentioned reasons.

The bill abolishes an article of the Press Law, which said that punishments handed down to responsible directors, or those who permit publication of news in a banned language cannot be commuted to fines. The bill also renders void a passage saying that such people can be kept in detention in police departments.

The harmonization law also lifts an article of the law on establishment and trial procedures of State Security Courts (DGMs), which limited the meetings between the suspect and his/her lawyer. Furthermore, it also abolishes provisions of the Law on Meetings, Demonstrations and Protest Marches that banned the organization of meetings or protest marches outside the scope of vocational organizations’ purpose.

This translation of Law No. 4771 of August 2002 was found on the pages of Secretariat General for European Union Affairs

HARMONIZATION LAW (3)

(LAW AMENDING VARIOUS LAWS)

ARTICLE 1.

A) Excluding death penalties envisaged for crimes committed in the time of war or during the imminent threat of war, the death penalties foreseen in the Turkish Penal Code No. 765 dated 1.3.1926, Law No. 1918 on the Interdiction and Pursuit of Smuggling dated 7.1.1932 and Forests Law No. 6831 dated 31.8.1956 shall be converted into heavy life imprisonment.In so far as,

a) The provisions of Articles 47, 50, 51, 55, 58, 59, 61, 62, 64, 65, 66, 102, 112, 451, 452, 462 and 463 of the Turkish Penal Code and Article 12 of Law No. 2253 on the Establishment, Duties and Trial Procedures of Juvenile Courts dated 7.11.1979 relating to the death penalty and,

b) Provisions on individuals who have received death sentences on the basis of Article 17 of the Turkish Penal Code and Article 19 and Additional Article 2 of the Law on the Execution of Penalties dated 13.7.1965, and whose death sentences have been commuted by the Turkish Grand National Assembly, are legally guaranteed.

B) According to the provisions of this Law, the time periods envisaged in Articles 70, 73 and 82 of the Turkish Penal Code for those individuals whose death sentences have been converted into heavy life imprisonment shall be doubled for ordinary and tripled for terror-related criminals.

According to the provisions of this Law, the provisions of the Law on the Execution of Penalties and the Anti-Terror Law No.3713 dated 12.4.1991 relating to conditional release shall not be applied to individuals whose death sentences have been converted to heavy life imprisonment. The heavy life imprisonment of such individuals shall continue until their death.ARTICLE 2.

A) The following paragraph has been added to article 159 of the Turkish Penal Code.“Written, oral or visual expressions of thought made only for criticism, without the intention to insult or deride the bodies or institutions listed in the first paragraph, do not require a penalty.” B) The Articles 201/a and 201/b have been added to the Turkish Penal Code to follow Article 201.“Article 201/a The smuggling of migrants is defined as helping individuals who are citizens of a foreign state or who are stateless or who have not been allowed to reside permanently in Turkey, to enter or stay in Turkey illegally or helping such individuals or Turkish citizens to leave the country illegally, with the intention of directly or indirectly obtaining material gain.

The perpetrators of the crime of migrant smuggling and those individuals, while not having participated in such a crime, who have assisted illegal migrants that have been previously brought into or have entered the country to leave the country illegally or to make possible their stay in the country, even though this is not in compliance with the legal conditions, and have prepared or provided false identification or travel documents for this purpose or have attempted any of these acts, even when these acts constitute a different crime, shall be sentenced to an additional heavy imprisonment from two to five years and a heavy fine of not less than one billion liras. Vehicles used in the crime and material gains made as a result shall be confiscated.

The penalties envisaged for the crimes listed in the paragraphs above shall be increased by half if the lives or bodily integrities of illegal migrants have been endangered or if they have been subjected to inhuman or degrading treatment and shall be increased by twofold if the action has resulted in death.

If the crimes listed in the paragraphs above are committed as an organization, the penalties foreseen for the perpetrators shall be doubled.

Article 201/b Those who provide, kidnap, take or transfer from one place to another and house individuals with the intention of making them work or serve by force, subject them to slavery or similar treatment, threaten, pressure, use force or coercion to persuade them to give up their bodily organs, use undue influence, secure their consent by deception or by exploiting the desperation of such individuals shall be sentenced to five to ten years of heavy imprisonment and a heavy fine of not less than one billion liras.

If the actions that constitute a crime are attempted with the intentions described in the first paragraph, the victim is assumed not to have given his/her consent.

If children below the age of eighteen are procured, kidnapped, taken or transferred from one place to another or housed with the intentions specified in paragraph one, even when no intermediary actions relating to the crime are committed, the penalties foreseen in paragraph one shall still be applied to the perpetrator.

If the crimes listed in the paragraphs above are committed as an organization, the penalties foreseen for the perpetrators shall be doubled.

ARTICLE 3.

A) The Article 11 of Law No. 2908 on Associations dated 6.10.1983, which is no longer in force, has been amended along with its title to read as follows:

“The activities undertaken abroad by associations established in Turkey

Article 11 In cases where international cooperation is deemed to be useful, the establishment of associations that will be active internationally, the establishment of branches abroad by these associations, their membership to or cooperation with associations or organizations established abroad for similar purposes or holding international activities is contingent upon the permission of the Council of Ministers upon the proposal of the Ministry of Interior, in consultation with the Ministry of Foreign Affairs.

The association or supra-organization that wishes to become a member of or cooperate with an association or organization abroad shall be obliged to provide the Ministry of Interior with two copies of a document detailing the status of that association or organization, translated into Turkish and approved by a notary.

If the foreign associations or organizations in which associations in Turkey are members or cooperate with in activities that are against our laws or our national interests, the relations of the association established in Turkey with these associations or organizations shall be terminated by a decision of the Council of Ministers upon a proposal submitted by the Ministry of Interior in consultation with Ministry of Foreign Affairs.

B) The repealed Article 12 of the Law on Associations, together with its title is amended as follows: “The activities in Turkey of associations established abroad

Article 12 In cases where international cooperation is deemed to be useful and reciprocal, in order to benefit from their knowledge and technologies in the fields of culture, economics, technical matters, sports and science, associations established abroad can be permitted by a decision of the Council of Ministers, upon the proposal of the Ministry of Interior in consultation with the Ministry of Foreign Affairs, to establish branches in Turkey, to become members of or cooperate with associations established in Turkey and to undertake activities in Turkey,

In cases where the abovementioned associations are involved in activities that are against our laws or national interests, the permission can be revoked by a decision of the Council of Ministers acting on the proposal of the Ministry of Interior in consultation with the Ministry of Foreign Affairs.

C) The first and second paragraphs of Article 15 of the Law on Associations have been amended to read as follows:

“An Associations Register shall be created at the Department of Associations in the Ministry of Interior and at the governorates of the provinces for the registration of associations.

All confederations, federations and associations, in addition to their branches and headquarters, and the branches in Turkey of associations whose headquarters are abroad, shall be registered in the Associations Register at the Department of Associations.”

D) The title and paragraph one of Article 40 of the Law on Associations are changed in the following manner.

“Prohibition on activities preparing individuals for National Defense and police services

Associations cannot undertake educational or training activities for preparation for military, national defense and police services. They cannot create camps or training grounds for these purposes.”

E) Article 45 of the Law on Associations together with its title is changed in the following manner.“The obligation to submit a declaration and inspection

Article 45 At the end of each year, associations are required to submit a declaration to the highest-ranking gubernatorial administrator in their area regarding their activities, revenues and expenses prepared according to the regulation to be issued by the Ministry of Interior.

When deemed necessary, the administrative centres, facilities and all annexed buildings, books, accounts and transactions of associations may always be inspected/audited by the Ministry of Interior or the highest gubernatorial authority of their location. The Ministry of Interior shall carry out the audit through the staff of its Department of Associations or through the Prime Ministry Inspection Board or the highest-ranking gubernatorial administrators themselves or through officials they designate.

The Ministries relevant to their aims and activities can also inspect associations. The results of these audits are forwarded to the Ministry of Interior for information.

All information, documents and records that may be requested by the officials in charge during the audit must be shown or provided by the association staff and all requests by the officials of entering administrative centers, facilities and annexes must be met.

If acts that constitute a crime are encountered during the inspection, the relevant gubernatorial authority immediately notifies the Public Prosecutor.”

F) Article 46 of the Law on Associations and its title have been changed as follows:

“The Department of Associations

Article 46 A Department of Associations shall be established within the Ministry of Interior to carry out services related to associations, to inspect if their operations are in line with the objectives specified in their statutes and if activities are undertaken to achieve those objectives, and whether they keep their books and accounts according to the regulations and their statutes. The establishment, operation and auditing principles and procedures of this unit shall be determined by a regulation to be prepared by the Ministry of Interior.”

G) Article 62 of the Law on Associations is changed as follows:

“Article 62 The principles and procedures relating to books to be kept by associations shall be determined by a regulation to be prepared jointly by the Ministries of Interior and Finance. These books must be approved by a notary.”

H) Article 73 of the Law on Associations is changed in the following manner.

“Article 73 A unit shall be established by the Ministry of Interior within the governorates in the provinces and within the prefectures in the districts to carry out the procedures and services relating to associations.

The organization, duties and responsibilities of this unit in the provinces and the form, organization and registration procedures of the Associations Register to be established under article 15 shall be elaborated in a regulation to be prepared by the Ministry of Interior.”

ARTICLE 4.

A) The following paragraphs have been added to the end of Article 1 of Law No. 2762 on Foundations dated 5.6.1935.

“In order to meet their religious, charitable, social, educational, health and cultural needs, community foundations, regardless of whether or not they have charter of foundation, can acquire and dispose of real property with the permission of the Council of Ministers.

The reap property used by these foundations to meet their religious, charitable, social, educational, health and cultural needs and whose temporary or permanent ownership by these foundations can be substantiated by tax records, rental agreements and other documentation shall be registered in the name of the foundation if an application is filed within six months of this Law entering into force. Real property donated or bequeathed to community foundations are also subject to the provisions of this article.”

B) The following Additional Article is added to Decree number 227 dated 8.6.1984 on the Organization and Duties of the Directorate General of Foundations.

“Additional Article 3 In cases where international cooperation is deemed to be useful, foundations established in Turkey can become members of foundations or organizations established abroad with the permission of the Council of Ministers on the recommendation of the Ministry to which the Directorate General of Foundations is attached to, in consultation with the Ministries of Interior and Foreign Affairs.

The holding of international activities by foundations established in Turkey to realize the objectives specified in their foundation charters, the opening of branches abroad and the cooperation with similar foundations or organizations abroad are contingent on a permission to be granted by the Council of Ministers to be based on the recommendation of the Ministry in charge of the Directorate General of Foundations in consultation with the Ministries of Interior and Foreign Affairs.

In cases where international cooperation is deemed to be useful and reciprocal, foundations established abroad can be permitted to undertake activities, establish branches, establish supra-establishments, join existing supra-establishments or cooperate with foundations extant in Turkey through a decision of the Council of Ministers upon the proposal of the Ministry in charge of the Directorate General of Foundations in consultation with the Ministries of Interior and Foreign Affairs.

These foundations are subject to the same regulations applicable to foundations established on the basis of the provisions of the Turkish Civil Code.”

ARTICLE 5.

A) The second paragraph of Article 3 of Law No. 2911 dated 6.10.1983 on Meetings and Demonstrations is changed as follows:

“The organization of meetings and demonstrations by foreigners in accordance with the provisions of this Law requires the permission of the Ministry of Interior. Foreigners can address a crowd and carry posters, placards, pictures, flags, inscriptions and equipment as long as the highest gubernatorial authority of the meeting’s location at least 48 hours before the meeting.”

B) The first paragraph of Article 10 of the Law on Meetings and Demonstrations is changed in the following manner.

“In order for a meeting to be held, a notice to be signed by all members of the organizational committee must be submitted to the governorate or the prefect with jurisdiction over the locale of the meeting at least 48 hours before the meeting and within working hours.”

ARTICLE 6.

A) The following article 445/A is added to come after Article 445 of Law number 1086 on Legal Procedures, dated 18.6.1927.

“Article 445/A If a final or finalized decision is found by the European Court of Human Rights to be in violation of the Convention on the Protection of Human Rights and Fundamental Freedoms or its annexed protocols and if the results of this violation cannot be compensated for as provided for in Article 41 of the Convention due to the character or significance of the particular violation; the Minister of Justice, the Chief Public Prosecutor at the Court of Appeals, the individual who has applied to the European Court of Human Rights or his/her legal representative can apply for a retrial to First Presidency of the Court of Appeals within a year of the finalization of the decision of the European Court of Human Rights.

This request is to be reviewed in the General Legal Council of the Court of Appeals. If the results of the violation confirmed by the European Court of Human Rights are compensated or if the request has not been filed within the specified period, it is rejected. Otherwise, the file will be forwarded without a hearing to the court that has made the decision.”

B) The following provision is added as the last paragraph to Article 448 of the Law on Legal Procedures.“The provisions of Article 445/A are exceptions.”

ARTICLE 7.

A) The following Article 327/a has been inserted after Article 327 of the Code of Criminal Procedure No. 1412 dated 4.4.1929.

“Article 327/a If a finalized judgement is found by the European Court of Human Rights to be in violation of the Convention on the Protection of Human Rights and Fundamental Freedoms or its annexed protocols and if the results of this violation cannot be compensated for as provided for in Article 41 of the Convention due to the character or significance of the particular violation; the Minister of Justice, the Chief Public Prosecutor of the Court of Appeals, the applicant to the European Court of Human Rights or his/her legal representative can apply for a retrial to First Presidency of the Court of Appeals within a year of the finalization of the decision of the European Court of Human Rights.

This request is to be reviewed in the General Legal Council of the Court of Appeals. If the results of the violation confirmed by the European Court of Human Rights have been compensated for or if the request has not been filed within the specified period, the application is rejected. Otherwise, the file will be sent without a hearing to the court that has made the decision for reexamination.”

B) The following provision is added as a last paragraph to Article 335 of the Code of Criminal Procedures.“The provisions of Article 327/a are exceptions.”

ARTICLE 8.

A) The following provisions have been added to the first paragraph of Article 4 of the Law No. 3984 on the Establishment and Broadcasting of Radio Stations and Television Channels, dated 13.4.1994.

“Furthermore, there may be broadcasts in the different languages and dialects used traditionally by Turkish citizens in their daily lives. Such broadcasts shall not contradict the fundamental principles of the Turkish Republic enshrined in the Constitution and the indivisible integrity of the state with its territory and nation. The principles and procedures for these broadcasts and the supervision of these broadcasts shall be determined through a regulation to be issued by the Supreme Board.”

B) The sub-paragraphs (f) and (v) of the second paragraph of Article 4 of the Law on the Establishment and Broadcasting of Radio Stations and Television Channels has been amended as to read as follows:

f) The privacy of private life shall be respected.

v) The broadcasts shall not encourage the use of violence or incite feelings of racial hatred.”

C) The first paragraph of Article 26 of the Law on the Establishment and Broadcasting of Radio Stations and Television Channels has been amended to read as follows:

“The re-transmission of the broadcasts shall be allowed provided that it does not contradict with this Law. The principles and procedures relating to re-transmission shall be by a regulation to be issued by the Supreme Board.”

ARTICLE 9.

A) The phrase which reads as “the crimes listed under additional the second paragraph of Article 1 of this Law” in Article 5, paragraph 3, sub-paragraph (6) of the Press Act No. 5680, dated 15.7.1950 has been amended to read as “the crimes listed under the first paragraph of additional article 1 of this Law”.

B) Article 21 of the Press Act has been amended to read as follows:

“Article 21. - Those who breech the provisions of Article 9, paragraph 1 and Article 11 shall be sentenced to pay a heavy fine from ten billion TL to thirty billion TL.

Regarding the periodicals whose publication has been suspended under the last paragraph of Article 9, those who continue with their publications without making a declaration shall be sentenced to pay a heavy fine from twenty billion TL to sixty billion TL.”

C) Article 22 of the Press Act has been amended to read as follows:

“Article 22. - Those who make a false declaration shall be sentenced to pay a heavy fine from twenty billion TL to a hundred billion TL, even if this act constitutes another crime.”

D) Article 24 of the Press Act has been amended to read as follows:

“Article 24. - Those who fail to abide by paragraph one of Article 12 shall be sentenced to pay a heavy fine from thirty billion TL to a hundred billion TL.”

E) Article 24 of the Press Act has been amended to read as follows:

“Article 25.- Those who employ persons not meeting the conditions and qualifications prescribed in Article 13 shall be sentenced to pay a heavy fine not less than fifteen billion TL.

F) Article 30 paragraph 3 of the Press Act has been amended to read as follows:

“Those who violate the provisions of the above paragraphs shall be sentenced to pay a heavy fine from twenty billion TL to a hundred billion TL.”

G) Article 33 paragraph 2 of the Press Act has been amended to read as follows:

“Those who infringe this law shall be sentenced to pay a heavy fine from ten billion TL to a thirty billion TL.”

H) Article 34 paragraph 2 of the Press Act has been amended to read as follows:

“If this book is not kept or they are incomplete or wrong information has been recorded, or the records and some of the information it should comprise is concealed when demanded by the office of the public prosecutor, then the owner or representative of that periodical shall be sentenced to pay a heavy fine from one billion TL to ten billion TL.”

ARTICLE 10.

A) Article 8 paragraph (D) of the Law No. 2559 on the Duties and Competences of the Police dated 4.7.1934 has been amended to read as follows:

“D) Places where gaming is carried out or performances are staged, or films or video tapes are shown and places which allow broadcasts over the internet that are detrimental to the Constitutional order, general security, general morals and the indivisible integrity of the state with its territory and nation,”

B) Article 9 of the Law No. 2559 on the Duties and Competences of the Police has been amended to read as follows:

“Article 9 In order to protect the national security, public order, public health and morality, or the rights and freedoms of others, to prevent crime and to identify any type of arms, explosive substances or object whose possession, or carrying of, is prohibited, the police may undertake searches on individuals, their vehicles, personal documents and belongings with a decision taken through appropriate procedures by the judge or the written instruction of the highest-ranking gubernatorial administrator in the locale in cases where a delay may be detrimental, in the following places:

A) The places of meetings and demonstrations which come under the scope of the Law No. 2911 on Meetings and Demonstrations or areas adjacent to these places.

B) Areas adjacent to places where the board meetings of private legal entities, and professional associations and trade unions with the status of a public institutions are held,

C) In places where the public may assemble or are present in groups,

D) In order to ensure freedom of education, educational institutions at all levels, the universities, independent faculties or affiliated institutions to be attended in line with Article 20 paragraph 2 sub-paragraph (A), areas adjacent to, and the entrances and exits of, such places,

E) Public places, places open to the public, student dormitories and annexed buildings,

F) The entrances and exits of settlements,

G) In all kinds of public transportation or moving vehicles.

Following the search, the police shall confiscate any criminal object and shall refer it to the office of the public prosecutor, along together with the documents.

For any search to be conducted by the police in order to identify the clues, indications, circumstantial evidence or proof of a crime or to apprehend its perpetrators in accordance with the Law on Criminal Procedure and other laws, the appropriate decision of the judge or where a delay may cause harmful effects, the written order of the competent body authorized by other laws, shall be necessary.

The search and seizure of published works in the scope of Press Act No. 5680 shall be subject to the general provisions.”

C) Article 11 paragraph (C) of the Law on the Duties and Competences of the Police has been amended to read as follows:

“C) Those who produce and sell any kind of audio-visual work against general morality and decency, regardless of the type of material used for recording,”

D) Article 12 of the Law on the Duties and Competences of the Police has been amended to read as follows:

“Article 12 Persons under 18 can not be employed in establishments serving alcohol, providing entertainment and gaming and similar establishments that are open to the public and whose establishment requires prior permission, with the exceptions provided for by law being reserved.

The police shall prohibit the entry of those under 18 to places serving alcohol, such as bars, nightclubs, casinos, taverns and traditional coffee houses and gaming establishments even if they are accompanied by their parents or legal guardians.

For individuals and workplaces who breach the provisions of this article, necessary action shall be carried out in accordance with the provisions of article 17 for individuals and article 8 for workplaces.”

E) Article 13 of the Law on the Duties and Competences of the Police has been amended to read as follows:

“Article 13The police shall apprehend and carry out the necessary procedures on the below:

A) Those caught in flagrante delicto or where a delay may cause harmful effect, the suspects for whom there are significant signs, indications, circumstantial evidence or proof that a crime has been committed or there has been an attempt to commit a crime,

B) Those for whom there is an apprehension or arrest warrant issued by the competent authorities,

C) Those who are so drunk as to disturb the public or cause a scandal or who assault others when drunk, those who continue to engage in such behavior despite warnings and who attempt to assault or fight others,

D) Those who enter the country irregularly or those for whom a deportation or extradition decision has been taken,

E) Those who object, resist or prevent the measures taken by the police in accordance with law,

F) Drug addicts, alcoholics, vagrants, persons who may spread diseases and mentally disturbed persons who may pose a threat to the society for the purpose of treatment, training and rehabilitation at an institution, in accordance with the provisions of the relevant laws and the implementing regulation of this Law

F) Minors for whom a decision has been taken for their rehabilitation under custody or to be presented before the competent authority.

The provisions of laws, which set out a specific procedure for the apprehension certain persons, shall be preserved.

Any measure that does not harm the detainees’ health can be taken in order to prevent them from escaping or attacking,

The detainees shall be notified of the apprehension reasons in writing; if this is not possible then they shall immediately be informed of the reasons verbally; in cases of collective crimes they shall be informed at the latest prior to being taken to the presence of the judge.

The apprehension of the person shall immediately be reported to those legally defined relations to be specified by the detainee.

Upon apprehension, the health situation of the below shall be determined with a physician’s report.

A) Those who are drunk or have used drugs,

B) Those who have been apprehended through the use of force,

C) Suspects and accused against whom a criminal investigation is to be conducted.

The detainees who are suspected of committing a crime shall be referred to the judicial authorities. Those for whom rehabilitation or treatment is necessary shall be referred to authorities of the relevant institutions. Those for whom the apprehension reason ceases to exist shall immediately be released.”

F) Additional article 1 of the Law on the Duties and Competences of the Police has been amended to read as follows:

“Additional article 1 Natural persons or communities may stage plays or performances or organize various types of shows in public places, places that are open to public or on public transport, provided that they notify in writing the highest-ranking gubernatorial administrator in the locale at least forty eight hours in advance.

The highest-ranking gubernatorial administrator of the locale shall immediately lodge a complaint to the public prosecutor about those who are found to be against the indivisible integrity of the state with its territory and nation, the Constitutional order or public morality.

The notification made pursuant to paragraph one shall indicate the identity, residential address and nationality of the managers and other persons who have participated in the play or performance.”

ARTICLE 11.

A) The name of the “Foreign Language Education and Teaching Law” No.2923, dated 14.10.1983 has been changed to the “Law on Foreign Language Education and Teaching, and the Learning of Different Languages and Dialects by Turkish Citizens”.

B) Article 1 of the Law on Foreign Language Education and Teaching has been amended to read as follows:

“Article 1 The purpose of this law is to regulate the procedures pertaining to the teaching of foreign languages in educational institutes, schools instructing in a foreign language and the learning of different languages and dialects traditionally used by Turkish citizens in their daily lives.”

C) The following provisions have been added to Article 2 paragraph (a) of the Law on Foreign Language Education and Teaching.

“Private courses subject to the provisions of the Law on Private Educational Institutions No. 625 dated 8.6.1965 can be opened to enable the learning of the different languages and dialects used traditionally by Turkish citizens in their daily lives. Such courses cannot be against the fundamental principles of the Turkish Republic enshrined in the Constitution and the indivisible integrity of the state with its territory and nation. The procedures and principles related to the opening and regulation of these courses shall be undertaken through a regulation to be issued by the Ministry of National Education.”

ARTICLE 12 The following provisions have been repealed.

A) Articles 39, 47 and 56 of the Law on Associations,

B) Additional Article 1 and Article 31 of the Press Act,

C) The final paragraph of Article 11 of the Law the Duties and Competences of the Police,

D) Provisional Article 1 of the Law No. 3218 on Free Zones, dated 6.6.1985.

PROVISIONAL ARTICLE 1.- The following cases of persons who have been sentenced to capital punishment due to having committed a crime within the scope of Article 1 paragraph (A) before this code comes into force, shall be considered to be priority cases and shall be decided on by the bodies referred to below with consideration to Article 2 of the Turkish Penal Code;

a) The files that have not yet been sent to the Court of Appeals or that are presently in the Office of the Chief Public Prosecutor of the Court of Appeals and the ones which have already been sent to the Turkish Grand National Assembly by the court which decided the case,

b) The cases, which are already in the Court of Appeals, by the relevant criminal chamber.;

The cases at the Office of the Chief Public Prosecutor of the Court of Appeals or the Turkish Grand National Assembly shall be sent back to the court that has decided on the case within one month after the entry into force of this law,in accordance with the procedures by which it was sent.

The provisions of this article shall be applied by means of comparison to the cases at Military Courts, Office of the Chief Public Prosecutor of the Military Court of Appeals and the Military Court of Appeals

PROVISIONAL ARTICLE 2.- Articles 6 and 7 of this law shall be applicable to decisions taken pursuant to applications lodged at the European Court of Human Rights after the entry into force of these articles.

PROVISIONAL ARTICLE 3.- The regulations foreseen in this law shall enter into force a year after the date of the publication

Entry into Force

ARTICLE 13. - Articles 6 and 7 of this law shall enter into force a year after the date of its publication, whereas the remaining articles shall enter into force on the date of its promulgation.

Enforcement

ARTICLE 14. - The provisions of this law shall be enforced by the Council of Ministers.

Secretariat General for European Union Affairs(Adopted by the Turkish Grand National Assembly on August 3, 2002 and approved by President Ahmet Necdet Sezer on August 8, 2002)

Harmonization Package (4)

On December 3, the Justice and Development Party (AKPJustice and Development Party )-led government approved a legislative package comprising a series of reforms aimed at bringing Turkish laws in line with European standards. The package was then conveyed to the relevant parliamentary commissions. The 37-article package, in which certain laws have been drawn up in line with the Constitutional amendments, passed the Interior Affairs Commission. Supported also by the opposition Republican People’s Party (CHPRepublican People's Party ) deputies, the package was discussed at the Justice Commission on December 9.

Parliament’s Constitutional Commission discussed amendments to Articles 67, 76, and 78 of the Constitution. The first round of voting was held on a three-article legislative package including the amendments to Articles 67, 76, and 78 of the Constitution. The amendments were approved by a majority of the deputies on December 10. The second round of balloting was held on December 13, which was in accordance with the Constitution. All the articles in the package, apart from the execution and enforcement articles, were adopted.

Parliament has passed a Constitutional amendment package, which changes Article 76 and allows Recep Tayyip Erdoğan to become a candidate. Article 76 stipulates who is eligible to become a deputy. It states that those who have been sentenced to prison for one year or more because of "engaging in ideological or anarchic actions" shall not be elected deputies, even if they have been pardoned. The government's proposed amendment excludes this provision.

The Parliament thus paved the way for AKP leader Recep Tayyip Erdoğan to be elected a deputy and assume the premiership. Deputies voted overwhelmingly in favor of the proposal to amend three articles of the Constitution. The Constitutional amendments, which require a two-thirds legislative majority, were also approved by scores of deputies from the opposition Republican People's Party (CHP).

On December 19, President Ahmet Necdet Sezer vetoed the laws, which would allow the banned leader of the ruling party, Tayyip Erdoğan, to become prime minister. "It is clear that the Constitutional amendment is subjective, concrete and aimed at one individual," the president ruled.

A statement issued by the Presidential Press Center said: President Sezer sent back the law on amending articles of the Constitution to the Parliamentary Speaker's Office for debate once again by parliament in accordance with Articles 89, 104 and 175 of the Constitution.

The first round of voting on the package was held on December 24 and the second round on December 27. On December 24, the parliament approved the amendments to the Constitution for a second time in a bid to overriding a presidential veto and paved the way for the ruling party's leader to become prime minister. On December 27, parliament voted to amend the Constitution to pave the way for ruling party leader Tayyip Erdoğan to run in a by-election as a first step in becoming prime minister. The legislative package was passed by 437 to 44 votes in the 550-seat assembly, easily mustering the two-thirds majority required by law.

On December 31, President Ahmet Necdet Sezer ratified the law to amend certain articles in the Constitution. A Presidential Press Center statement said that Sezer had returned the law, which was passed on December 13, 2002 to the Parliament on December 19, 2002 to be debated once more. The statement noted that Sezer sent the law, which was passed, in its current form by the Parliament on December 27, 2002 to the Prime Ministry to be published in the Official Gazette.  

Harmonization with the Constitution and Copenhagen Criteria

The legislative package, prepared within the framework of harmonization with the Constitution and Copenhagen Political Criteria was adopted at the Plenary Session of the Parliament on January 2, 2003. 

The law, which stipulates punishment, handed down for convictions of torture and abuse cannot be converted into fines, and neither can they be postponed. In addition, the interrogation period for suspects, in places where Emergency Rule is implemented, has been reduced to four days.

Parliament has also adopted measures that would make it more difficult for those convicted of inflicting torture to avoid prison terms – a part of the reforms aimed at improving Turkey's chances of joining the European Union. The laws passed by the parliament would also make it more difficult for courts to ban political parties, and to ensure that journalists are not required to disclose their sources to authorities.

The Parliament voted 254-2 in favor of the measures preventing courts from suspending the sentences of those convicted of inflicting torture and the conversion of these sentences which monetary fines.

The law re-arranged Article 11 of the Political Parties Act and changed the second paragraph of Article 312 of the Turkish Penal Code (TCK) which stated, not being sentenced on charges of openly inciting people by discriminating with regard to class, race, religion, sect and regional difference and changed it to not being sentenced on charges of terrorist activities.

Individuals sentenced to prison terms of five years or more on charges of bribery, corruption, swindling, falsification, embezzlement, theft, false bankruptcy, misuse of belief, and smuggling, and those sentenced to prison terms on charges of terrorist activities, cannot be members of political parties.

In another article, which harmonizes the Political Parties Act with the Constitution, the provision, which states that a closure case can be opened against a party if the party acts in contradiction to the laws, and fails to remedy the situation despite warnings has been eased.

A three-fifths majority will be necessary to make a decision for the closure of parties. In opposition to the request of the Supreme Court of Appeals Chief Prosecutor for party closure, the related party may lodge a protest with the Constitutional Court.

According to the new arrangement, the Chief Public Prosecutor may open a case against the Constitutional Court to deny a political party from partial or whole state aid if the party fails to remedy the contradiction within six months following a written warning by the Constitutional Court.

Article 15 of the Press Law has been amended, and it was decided that the editors-in-chief and those who write the news reports cannot be forced to disclose their sources of information.

Under the law, which amends the “Record of Convictions Law”, the concept of a crime, which could not be registered from the record of convictions, was removed. The Record of Convictions of those who had not attained the age of 18 at the time when the crime was committed can from now on be deleted.

Under the provisions of the package, judges are obliged to hear the statements of defendants and detainees before they reach a verdict. In addition, defendants and detainees will be given a medical examination, and a report will be written on the health of each inmate upon entering and leaving prison.

Under the law, foreigners are granted the right to petition Parliament. Foreigners living in Turkey may benefit from this right on condition that the petitions are written in Turkish, and by taking into consideration the principle of reciprocity.

According to the law, religious and minority foundations will be able to buy and sell real estate in order to meet their religious, social, educational, health and cultural needs.

Community foundations must obtain permission from the Directorate General of Foundations to obtain property. Community foundations will be able to own property in order to meet their religious, social, educational, health and cultural needs.

In addition, associations have to carry out all their correspondence with state institutions in Turkish. Announcements, statements and publications of associations will be seized if they threaten the internal or external security of the state, go against the principles of the republic, incite people to commit crimes or carry out uprisings, publish confidential documents of the state or violate the private lives of others.

No one is allowed to establish associations which act against the principles of the republic or against general health and ethics, with the intent of committing crimes which jeopardize the national security and public order, or of restricting the freedom of others.

Associations will be able to carry out activities abroad in order to reach the goals stipulated in their regulations. They will also be able to open offices abroad and become members of international associations or organizations.

With the permission of the Interior Ministry and acquiescence of the Ministry of Foreign Affairs, foreign associations will also be allowed to carry out activities, open offices and join associations in Turkey.

Associations will be able to issue statements without getting prior permission.

By amending the Associations Law, the package introduces fines, rather than prison sentences, as punishment for associations, which do not declare their assets.

Foreign associations may carry out activities, and open branches in Turkey according to the principle of reciprocity with the permission of the Interior Ministry and the assent of the Foreign Ministry.

Including the amendments to the Code of Criminal Trials Procedures (CMUK), the Turkish Penal Code (TCK), the Code of Legal Trials Procedures (HMUK), the State Security Court (DGM) Law, the Political Parties Law and Associations Laws, the package provides for e.g. the retrial of convicts on the basis of verdicts of the European Court of Human Rights by amending the concerned article of the CMUK. Justice Minister Cemil Çicek has said that the court verdict for the retrial of convicts will be in effect one year after the law comes into force. The package also includes an amnesty for university students who have violated disciplinary codes.

The law No: 4778 which made certain amendments to various laws within the framework of harmonization with Copenhagen political criteria and the Constitution went into force on January 10, 2003.

Harmonization Package (5)

On January 23, parliament adopted the second EU harmonization package, which permits the re-trial of persons in line with the decisions of the European Court of Human Rights (ECHR).

Under the law, if an individual who applied to the ECHR, is found to be in the right, he/she can re-apply for a retrial to the court in his/her country which found him/her guilty.

In addition to a re-trial, sentences handed down to persons who establish relations with foreign associations and institutions without getting permission; issue statements on behalf of an institution without obtaining the decision of the executive board, do not receive permission to issue statements, are converted into fines changing between one to three billion TL.

President Ahmet Necdet Sezer has approved six laws, including one amending several laws, aimed at bringing these laws in line with the European Union standards, which Turkey aspires to join. This particular law allows Turkish foundations to establish formal relations with foreign foundations and organizations and it also eases restrictions on foundations.

In addition to the second democracy package, the President has also approved three laws ratifying a UN convention against transnational crimes; a UN protocol to prevent illegal immigration and an appendix to a UN Convention aimed at struggling against trafficking in human beings. Another law stipulates parliamentary ratification to a free trade agreement signed between Turkey and Croatia. The law adds an article to the Code of Civil Procedure (HMUK), enabling application to the Supreme Court of Appeals with a request for a re-trial process within one year following the decision of the European Court of Human Rights (ECHR). In addition, the law foresees amendments to the Law of Criminal Procedure (CMUK) parallel to this.

The law envisaging amendments to certain laws, which is recognized as the second European Union (EU) harmonization package, came into effect on February 4, after being published in the Official Gazette.

The Ankara State Security Court (DGM) has approved the application made by four former deputies of the defunct pro-Kurdish Democracy Party (DEP), who demanded a retrial in line with an amendment to a law adopted by Parliament as a part of a reform package aimed at harmonization with EU laws. Accordingly, the court will retry the former deputies but it has rejected the request of the acquittal of these deputies. The former DEP deputies, namely Hatip Dicle, Leyla Zana, Orhan Doğan and Selim Sadak were convicted of aiding and abetting members of the PKKKurdish Workers' Party terrorist organization and were sentenced to 15 years imprisonment in 1994. The convicts have applied to the European Court and the decision was a re-trial. As Parliament passed a law amendment allowing retrial following the European Court verdict, the deputies applied to the Ankara DGM. The European Court decided that the former deputies had not been given a fair trial in the Turkish court.

Provisions Related to the Use of the Kurdish Language

Inofficial translations of

1. Statute (Bylaw) on the learning of languages and dialects used traditionally by Turkish citizens in their daily lives and
2. Regulation on the Language of Radio and Television Broadcasts found at

Mercator-Bulletin No. 53; http://www.ciemen.org/mercator/butlletins/53-06.htm and 53-04.htm

1. Press release on the case launched by Diyarbakır Bar Association with the demand to cancel Regulation on the Language of Radio and Television Broadcasts

[Ministry of National Education, September 20th, 2002]

Bylaw on the learning of languages and dialects used traditionally by Turkish citizens in their daily lives

SECTION I

General Provisions

Purpose

Article 1- The purpose of this bylaw is to establish rules to govern the opening, functioning and the bylaw of private courses, held in accordance with Act No. 625 on Private Educational Institutions, dated 8/6/1965, for the learning of languages and dialects used traditionally by Turkish citizens in their daily lives.

Scope

Article 2- This bylaw covers work and transactions to be undertaken in relation to private courses to be held, in accordance with Act No. 625 on Private Educational Institutions, dated 8/6/1965, for the learning of languages and dialects used traditionally by Turkish citizens in their daily lives.

Justification

Article 3- This bylaw has been prepared on the basis of the Fundamental Law of National Education, No. 1739, dated 14/6/1973, Act No. 625 on Private Educational Institutions, dated 8/6/1965, Act No. 2923 on the Education and Teaching of Foreign Languages and the Learning of Different Languages and Dialects by Turkish Citizens, dated 14/10/1983.

Definitions

Article 4- The terms in this bylaw are as follows:

a) The Ministry: The Ministry of National Education,

b) Course: the private course held for the learning of languages and dialects used traditionally by Turkish citizens in their daily lives,

c) Trainee: Trainee registered in the course,

d) Program: Instruction program of which the name, level and duration of which has been indicated and which have been approved by the Ministry,

e) Term: Total duration of instruction indicated in the instruction program.

The Purpose of the Course

Article 5- The purpose of the course is to undertake, in accordance with the general purposes and basic principles of Turkish National Education, activities for the learning of languages and dialects used traditionally by Turkish citizens in their daily lives.

SECTION II

Establishing Institutions and Beginning Teaching

Article 6- When the conditions referred to in the Bylaw on Private Educational Institutions Affiliated with the Ministry of Education for permits for the “establishment of institutions” and “Beginning of Teaching” have been fulfilled, the Ministry shall issue permits for the “establishment of institutions” and the “beginning of teaching”.

Appointments

Article 7- The Director, Assistant Director, teacher and master trainer and other personnel shall be appointed to the course for which a permit has been issued.

The personnel to be allowed to work must fulfill the qualifications and conditions indicated in Act No. 625 on Private Educational Institutions and the Bylaw on Private Educational Institutions Affiliated with the Ministry of Education, must be a citizen of the Republic of Turkey and must fulfill the qualifications and conditions identified by the Council for Education and Training.

The personnel to be appointed are to be allowed to work in accordance with the provisions of Article 23 of the Act No. 625 on Private Education Institutions and the relevant articles of the Bylaw on Private Educational Institutions Affiliated with the Ministry of Education,Personnel, other than the administrators, teacher and master trainers, should:

a) Be citizens of the Republic of Turkey,

b) Be graduates of primary education at the least (primary school for those graduating before the implementation of Act No. 4306, dated 16/8/1997),

c) Have no convictions other than for crimes of negligence, no convictions for infamy and for crimes committed against the States and should not have been deprived of public rights,

d) Have medical reports confirming that there are no physical or mental illnesses that will prevent the continuous performance of duties.

Rules for registration

Article 8- Turkish citizens with at least primary education may register in the courses. The written consent of parents or legal guardian is required for the registration of persons under 18 years of age.

6th, 7th and 8th year students may register in weekend and summer courses with the written consent of his/her parents or legal guardian.

Trainees may not transfer from one course to another.

Documents required for registration

Article 9- Documents required for registration of trainees:

a) Copy of birth certificate,

b) Certificate of education or its duplicate (these documents may be approved by the director of course if the original is presented),

c) Four wallet-size photographs.

Teaching programs, terms, daily work hours

Article 10- The teaching program of the course is to be approved by the Ministry.

The course is to consist only of the teaching program for the learning of languages and dialects used traditionally by Turkish citizens in their daily lives.

The list of trainees is to be submitted, at the beginning of each term, to the director of national education with which the course is affiliated.

Activities may be undertaken between 8.00 and 22.00 hours in the course. The duration of each lesson is 45 minutes.

The teaching of persons under 18 years of age is to be undertaken within working hours.

Lessons shall not be held during national holidays.

SECTION III

Various Provisions

Monitoring

Article 11- The monitoring of courses is to be undertaken by the Ministry of Education. Experts may also be appointed by the governorates along with inspectors if necessary.

Dress code

Article 12- The provisions of the “Bylaw on the Dress Code for Personnel and Students at Schools affiliated with the Ministry of National Education and Other Ministries”, which entered into force with Council of Ministers Decision No. 8/3349, dated 22/7/1981, are to be applicable for the founder, representative of the founder, the administrator, teacher and other personnel; the provisions applied at other official public education institutions are to be applicable for trainees registering in the course.

Co-education

Article 13- Co-education is undertaken in accordance with Article 15 of Act No. 1739 on the Fundamental Law of National Education, dated 14/6/1973, and Article 5 of the Bylaw on Private Educational Institutions affiliated with the Ministry of Education.

Other Matters

Article 14- The provisions on legislation on private educational institutions are to be applied to matters that have not been referred to in this Bylaw.

SECTION IV

Entry into force and Implementation

Entry into force

Article 15- This Bylaw shall enter into force at the date of its publication.

ImplementationArticle 16- The provisions of this Bylaw are to be implemented by the Minister of National Education.

[Radio and Television Supreme Board December 18th, 2002]

Regulation on the Language of Radio and Television Broadcasts

SECTION ONE

Objective, Justification and Definitions

ObjectiveArticle 1 - The objective of this regulation is to regulate the procedures and principles relating to broadcasts made in the different languages and dialects traditionally used by Turkish citizens in their daily lives in addition to radio, television and data broadcasts in Turkish.JustificationArticle 2 - This Regulation has been prepared based on Article 4 of Law no. 3984 on the Establishment and Broadcasts of Radios and Televisions amended by Law no. 4771.

DefinitionsArticle 3 - Of the terms used in this Regulation;

a) The Supreme Board denotes the Radio and Television Supreme Board,

b) TRT denotes the Turkish Radio and Television Corporation,

c) Law denotes Law no. 3984 on the Establishment and Broadcasts of Radios and Televisions,d) Data broadcasts denotes broadcasts made, either together with or in relation to radio and television broadcasts or independently of radio and television programmes, via electromagnetic waves, data networks and other means with the intention to inform the public directly.

SECTION TWO

Language of Broadcasts

Article 4 - The main language of broadcasts is Turkish. In the broadcasts, it must be ensured that Turkish is used as a language of communication without distorting its characteristics and rules and that Turkish is promoted as a modern language of culture, education and science.

Broadcasts in Languages and Dialects used traditionally by Turkish Citizens

Article 5 - Broadcasts can also be made in the different languages and dialects traditionally used by Turkish citizens in their daily lives.

Broadcasts in the different languages and dialects traditionally used by Turkish citizens in their daily lives shall be made by the Turkish Radio and Television Corporation.

In these languages and dialects, broadcasts can be made for adults on news, music and culture. No broadcasts can be made towards the teaching of these languages and dialects.Within the framework of the financial contributions of the Radio and Television Supreme Board and the means available to the TRT, broadcasts will be made, also taking on board the views and requests of the administrative authorities, in these languages and dialects through a protocol to be concluded between the Supreme Board and the TRT and surveys will be undertaken to establish the listener-viewer profile of these broadcasts.

The provisions of this Regulation and the aforementioned protocol apply to broadcasts to be made by the TRT in these languages and dialects.

The duration of radio broadcasts in these languages and dialects shall not exceed 45 minutes per day and a total 4 hours per week. TV broadcasts shall not exceed 30 minutes per day and a total of 2 hours per week. TV broadcasts shall be accompanied by Turkish subtitles that will fully correspond to the broadcast in terms of timing and the content. As regards radio broadcasts, a Turkish translation will be broadcast after the program.

ApplicationArticle 6 - The Turkish Radio and Television Corporation shall apply to the Supreme Board with the executive board decision indicating the broadcasting area with respect to viewer-listener profiles of television and radio programmes, the languages and dialects to be used and the types of broadcasts of news, music and culture in these languages and dialects, on which day(s) these broadcasts will be made, their positioning in the daily broadcasts and monthly and annual broadcasting plans along with documents certifying that the members of the supervisory board to be established specifically for these broadcasts, the director in charge, the staff of the news department and news presenters satisfy the criteria specified in Law no. 3984 and related regulations.

SECTION THREE

Assessment, Permission and Requirements

Assessment and Permission

Article 7 - The Supreme Board decides in which language(s) and/or dialect(s) broadcasts shall be made and the broadcasting area based on the viewer-listener profile.The Supreme Board decides the conditions of permission by obtaining, ex officio, information and documents from the competent authorities, not restricting itself to the information and documents in the application of the TRT, which will be in charge of the broadcasts in the different languages and dialects traditionally used by Turkish citizens in their daily lives.

Requirements

Article 8 - Radio and Television broadcasts in the different languages and dialects traditionally used by Turkish citizens in their daily lives cannot violate the supremacy of the law, the basic principles of the Constitution, basic rights and liberties, national security, general morality, the fundamental characteristics of the Republic as set out in the constitution, the indivisible integrity of the state with its country and people, Law no. 3984 and the principles and procedures set out in the regulations published based on this law, the requirements foreseen by the Supreme Board and its conditions of permission and guarantees and should be made within the framework of a public service approach.

During these broadcasts, the studio arrangements used for other broadcasts cannot be changed. The presenters and announcers are required to be in modern clothing.

Penalties

Article 9 - Broadcasts violating the provisions of this Regulation shall be subject to the provisions of Article 33 of Law no. 3984.

Recourse to judicial means is possible concerning the decisions of the Supreme Board.

SECTION FOUR

Entry into Force and Implementation

Entry into Force

Article 10 - This Regulation enters into force on the date of its publication.

Implementation Article 11 - The provisions of this Regulation is implemented by the Radio and Television Supreme Board.

CHAIR OF DİYARBAKIR BAR ASSOCIATION NUMBER :2003/41 DATE: 03.02.2003 PRESS RELEASE It is well known that Article 8 of the Law 4771 changed Article 4 of Law 3984 on Foundation and Broadcast of Radio and TV stations to the effect, “… there may be broadcasts in the different languages and dialects used traditionally by Turkish citizens in their daily lives… The principles and procedures for these broadcasts and the supervision of these broadcasts shall be determined through a regulation to be issued by the Supreme Board.” The Regulation on the Language of Radio and Television Broadcasts that the Supreme Board prepared and that was enacted by publication in the Official Gazette of 18 December 2002 was compiled in contravention of law and in a manner that does not suit its aims. By stating in Article 4 “The language of broadcasts is Turkish [and] it must be ensured that Turkish is used as a language of communication” the aim is no longer “broadcast in the mother tongue”. The regulation thus introduces a limitation that is against the intention and spirit of the Law. Article 5/2 of the Regulation provides that these broadcasts can only be conducted by TRT. This prevents private radio and TV stations from making such broadcasts and creates a monopoly in favor of the Turkish Radio and TV Organization TRT that contravenes Article 133 of the Constitution. Article 5/3 of the Regulation provides that these broadcasts can only be directed at “adults”. This provision violates Article 10 of the Constitution for persons, who may use the right and contravenes Article 13 of the Constitution by creating a limitation that does not exist in Law. Article 5/6 provides “...broadcasts in these languages and dialects shall not exceed 45 minutes per day and a total 4 hours per week. TV broadcasts shall not exceed 30 minutes per day and a total of 2 hours per week”. This provision of the Regulation makes the Law almost useless and constitutes a violation of Article 13 of the Constitution. On 25 December 2002 the board of Diyarbakır Bar Association took the decision 2002/411 instructing the chair to open a case at the Supreme Administrative Court via Diyarbakır Administrative Court for a cancellation of Article 4 and §§ 2, 3 and 6 of Article 5 of the Regulation on the Language of Radio and Television Broadcasts enacted by publication in the Official Gazette of 18 December 2002 based on its duty and competence provided in Article 95/21 of Law 1136 on Lawyers, changed by Law 4667. Subsequently, Diyarbakır Bar Association filed a case with the Supreme Administrative Board on the grounds that the provisions of the Regulation had been prepared against the provision of Article 4 of Law 3984, changed by Law 4771, which principally grants the freedom to broadcast in the mother tongue ad violated Articles 2, 7, 10, 13, 124 and 133 of the Constitution by restricting the use of this freedom. This information is for the public. Chairman of Diyarbakır Bar Association Lawyer M. Sezgin TANRIKULU

Evaluation of changes

The Accession Partnership Document, which is considered to be the “road map” of the process of Turkey’s full membership in the European Union, shows the strategy of this process, as determined by the EU. To achieve progress in the process of full membership depends on alignment of the law system with the EU acquis in the light of the “criteria” contained in the said document.

The section on “political criteria” of the document requires that comprehensive changes and corrections be made in the constitutional system, particularly in the area of fundamental rights and freedoms. Turkey explained in her National Program how and in what manner she will fulfil her “duties” determined under the Accession Partnership Document. The Program states that the Turkish Government will accelerate its studies concerning political, administrative and judicial reforms in the year 2001 and that it will submit its proposals to the GNATGrand National Assembly of Turkey (Grand National Assembly of Turkey) as soon possible with a view to “developing even further the provisions of the Constitution and the laws, which are liberal, participatory, guaranteed, which balance the duties and powers among state organs, which render supreme the principle of the state of law, on the basis of Turkey’s international commitments and the EU standards”; promises that the “Constitution will be reviewed with priority in the process of reform in the fields of democracy and human rights”, and emphasizes that the Constitutional changes will determine the framework of the legal arrangements as well.

It was witnessed, following the announcement of the National Program, that the legislative process underwent an unprecedented acceleration and that various changes were made in a significant part of the Constitution and in various laws. The first of such arrangements said to be made for alignment with the “political criteria” amid intense debate are the “Constitutional amendments” dated 3 October 2001. Following this significant step, three additional separate packages known as the “laws of adjustment” were passed by the GNAT. They were not expected to put an end to the debates. As a matter of fact, they did not, and what’s more, the debates gained new dimensions and new actors joined in. While the state organs asserted that these arrangements met the requirements of the “political criteria” of the Accession Participation Document, and that, consequently, the constitutional system has been aligned with the EU standards from the standpoint of democracy and freedoms, various circles including human rights organizations maintained that it was not true and drew attention to the deficiencies and insincerities in the “adjustment packages”. The “new actors” of the debate, from various levels of the EU expressing their views, on the other hand, underlined particularly the factor of “implementation”. In this Article, a general assessment will be made of the “laws of adjustment” which constitute the ground and objects of the debate under consideration.

CONSTITUTIONAL CHANGES

An amendment was made to Article 34 of the Constitution, with the Law No. 4709 passed by the GNAT on 3 October 2001. A significant part of this most comprehensive constitutional change in the history of the Republic is directly related with fundamental rights and freedoms. When considered independently of the adjustment laws and the administrative and judicial practice and extent of putting the changes into practice, the package seems to contain some arrangements that cannot be deemed insignificant in some areas, whose necessity from the standpoint of democratization has long been voiced. When one examines the changes closely, however, one can find that some changes presented as “radical reform” are not of such a nature at all. Let us elaborate on this assessment by considering briefly and in sequence those that are related directly with the National Program:

1- Preamble of the Constitution

Article 1 of the Law No. 4709 amends paragraph 5 of the preamble of the Constitution, re-arranging the wording: “no thoughts and opinions” as: “no activity”. This amendment widens the limits of the freedom of thought and expression, and a restriction is applied only in case of realization of an “activity” which violates the prohibitions stated in the provision.

The said paragraph of the preamble of the Constitution, which has the nature of an abstract Constitutional restriction foreseen directly for fundamental rights and freedoms was a convenient reference that the lawmaker could have recourse to when it wanted to restrict particularly the freedom of thought. Replacement of the wording: “thought and opinion” with the word “activity” can be assessed as removal of the said possibility from the standpoint of constitutional law, or more correctly, as depriving the lawmaker of the tool of restricting the freedom of thought on the basis of the preamble of the Constitution. However, it would be too optimistic an approach to say, on the basis of only the said amendment, that the field of the freedom of thought has been broadened. Because, existence of “concrete” grounds enabling the lawmaker to restrict more makes it redundant to have recourse to essentially abstract constitutional grounds of restriction and to such a reference as the Preamble whose value and function is controversial in constitutional theory.

2- Restriction of Fundamental Rights and Freedoms

Article 2 of the Law amends Article 13 titled “restriction of fundamental rights and freedoms” of the Constitution. With this amendment, the grounds of restricting fundamental rights of and freedoms, expressed as “indivisible integrity of the state with its territory and nation, national sovereignty, the Republic, national security, public order, public peace, public interest, public morals and public health” have been deleted from the text of the Article. The new arrangement states that fundamental rights and freedoms “may be restricted only for the reasons stated in relevant Articles of the Constitution and only by law, by leaving their essence intact.”

Prior to the amendment, Article 13 was of the nature of a “general restriction provision” granting the legislature the power to restrict all rights and freedoms without any exceptions, and foresaw grounds of restrictions applying to all freedoms. With the amendment, Article 13 ceased to be a “provision for general restriction” and was turned into an arrangement stating the principle and limits of the restriction. Removal of general grounds of restriction means that the rights and freedoms may be restricted only for the reasons stated in the Articles devoted to them. In this situation, it can be really meaningful if there are rights and freedoms for which a reason for restriction is not foreseen in the respective Article. In other words, in order for the removal of the general restriction provision to have an effect that broadens the field of freedoms, the Constitution must contain freedom categories that do not include a special ground for restriction. When one views the Constitution from this angle, one sees that there is no provision of such a nature for rights and freedoms, what’s more, when the other parts of this package of amendments are examined, it can be found that necessary measures have been taken against the liberal relaxation that can be created by removal of the general restriction provision. Article 26 titled “freedom of expression and dissemination of thought” exhibits such an attitude in all its clarity. The provision of this package amending Article 26 of the Constitution is as follows: “After the wording ‘exercise of these freedoms’ in paragraph 2 of Article 26 of the Constitution of the Republic of Turkey shall be added the following wording: may be restricted for the purposes of national security, public order, public security, fundamental tenets of the Republic and indivisible integrity of the state with its territory and nation”. The former text of Article 26 contained reasons for restriction as well, but they were more definite, concrete and in line with international standards, namely: “preventing crime, punishing offenders, withholding information duly classified as a State Secret, protecting the reputation and rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary”. This amendment shrewdly removes the reasons for general restriction from Article 13 on the one hand, and inserts the same reasons into Articles that do not include them on the other hand, and intends, in this way, to check a possible broadening in the field of freedoms.

The package of amendments includes other examples of this attitude which can be called insincerity in Article 31 related with “freedom of press”, in Article 33 which regulates “freedom of association” and in Article 34 arranging the “right of meeting and demonstration march”.

3- Abuse of Fundamental Rights and Freedoms

Article 3 of the package of amendments re-arranges Article 14 titled “prohibition of abuse of fundamental rights and freedoms”. The new text of simplified paragraph 1 of Article 14 reads as follows: “None of the rights and freedoms embodied in the Constitution shall be exercised in the form of acts aiming to violate the indivisible integrity of the State with its territory and nation, and to do away with the democratic and secular Republic based on human rights”. This 2^nd paragraph which includes the State among the obligors of the prohibition of abuse reads as follows after the amendment: “No provision of this Constitution shall be interpreted in a manner that will make it possible to engage in an activity aiming at destroying the fundamental rights and freedoms granted to the State or persons under this Constitution or to delimit such rights and freedoms more broadly than what is prescribed in the Constitution”.

This amendment eases the restrictive function of Article 14 in the system of restriction of fundamental rights and freedoms and thus aligns it with Article 17 arranging the same matter of the European Convention of Human Rights. Accordingly, the word “acts” added to paragraph 1 has put an end to thoughts and even scientific-artistic works being under the threat of the grounds of restriction enumerated in the Article, while paragraph 3 renders the constitutional position of the freedoms more secure by extending the prohibition of abuse to the State as well.

4- Personal Liberty and Security

Article 4 of the package amends Article 19 titled “personal liberty and security” of the Constitution. Within this framework, custody period is reduced from “fifteen days” to “four days” in case of offences committed collectively and it is stated that the fact that a person has been arrested or detained shall be notified promptly and unconditionally to their next of kin.

This matter will be assessed in the section titled Adjustment Laws (section II-1-c and d) together with Articles 5, 6, and 7 of the 1st Adjustment package published in the Official Gazette dated 19 February 2002 and some arrangements stated in Articles 3 and 7 of the 2nd Adjustment package published in the Official Gazette dated 9 April 2002 on the basis of the said constitutional amendment.

5- Privacy of Individual’s Life

Article 5 of the amendment package, which re-arranges Article 20 titled “privacy of individual’s life” of the Constitution sets an example for the idiom: “give with a spoon, take back with a ladle”. The Article removes from the text the wording: “necessities of judicial investigation and prosecution” which was put forward as an exception to the inviolability of private life in the former text, and thus makes this domain more secure on the one hand, puts forward the concepts of “national security, public order, prevention of commitment of an offense, protection of public health and public morals and protection of the rights and freedoms of others” as grounds for restricting the privacy of individual’s life, and thus creates a much less secure situation on the other hand. It should be noted that the concepts enumerated here are identical to the “general restriction grounds” stated in the former Article 13.

6- Inviolability of Domicile

The amendment made with Article 6 of the package to Article 21 arranging “inviolability of domicile” of the Constitution is of such a nature as to lead to weakening and not strengthening of the guarantees. With this amendment, the concepts of “national security, public order, prevention of commitment of an offence, protection of public health and public morals, protection of rights and freedoms of others” are being added to the Article as grounds for special restriction and thus the lawmaker regains the power of restriction which was taken away with the amendment made to Article 13.

7- Freedom of Communication

The foregoing considerations also apply to the amendment made to Article 22 of the Constitution. By adding the grounds of restriction expressed as “national security, public order, protection of commitment of an offense, protection of public health and public morals and protection of rights and freedoms of others”, it is intended to eliminate the effect of the amendment made to Article 13.

8- Freedom of Movement

With the amendment made to Article 23 of the constitution, the boundaries of the “freedom of movement” have been broadened by removing the “national economic situation” as a ground for restricting a citizen’s freedom to leave the country.

9- Freedom of Thought

The amendment made to Article 26 of the Constitution has one positive and one negative dimension from the standpoint of liberal relaxation. Removal of the paragraph containing the statement: “no language prohibited by law shall be used in the expression and dissemination of thought” is of course a positive development though it means abrogation of a primitive constitutional ground clearing the way for a rude assault on the foundation of people’s right to be themselves. The same is true for the amendment made to Article 28 of the Constitution. Here, the statement reading: “publication shall not be made in any language prohibited by law” has been removed from the text of the Article.

The second and negative dimension of the amendment made to Article 26 of the Constitution is blocking of the liberal relaxation likely to be brought about by the amendment to Article 13, by inserting special restrictive grounds, which did not exist before.

10- Freedom of Association

The amendment made to Article 33 titled “freedom of association” of the constitution removes paragraph 2 which paved the way for an application that can be characterized as an “indirect permission system”, which weakens the basis of legitimacy of the practical barriers that may be put before this freedom.

11- Right to Hold Meetings and Demonstration Marches

The amendment made to Article 34 of the Constitution removes some of the provisions constituting the basis of the legal arrangements that prevent “the right to hold meetings and demonstration marches” from being exercised effectively. These provisions are the following: “The competent administration may determine a site and route for the demonstration march in order to prevent disruption of order in urban life” which was the second paragraph of Article 34, and “Associations, foundations, labor unions, and public professional organizations shall not hold meetings or demonstration marches that fall outside of their own fields of activity and purposes.”

We have stated above the connection between the amendment made to this Article and the amendment made to Article 13, that is, the meaning of inserting such special restrictive grounds as “prevention of commitment of an offense, public health, public morals, protection of rights and freedoms of others” which did not exist in the former text of the Article.

12- Capital Punishment

Article 15 of the package contains the provision incorporating the amendments relating to an extremely sensitive problem carrying vital importance from the standpoint of both the process of membership in the EU and fundamental political balances and social peace, namely, the capital punishment. The amendment made to Article 38 titled “principles relating to offenses and penalties” of the constitution after sharp debates, dangerous maneuvers and private negotiations provides that “capital punishment may be imposed only in case of war, threat of imminent war and for offenses of terrorism”. Since offences of terrorism are included among the cases for which capital punishment may be imposed, this amendment is neither in line with the EU’s basic approach concerning capital punishment, nor with the standards of the supplementary protocol No. 6 of the European Convention of Human Rights, nor does it help release the tension accumulated in the country.

Under the amendment, the following statement has also been inserted to Article 38: “findings obtained illegally cannot be accepted as evidence”. Thus, a constitutional basis is provided to the universal principle that particularly the evidences obtained under torture may not be used.

13- Dissolution of Political Parties

Re-arranged form of Article 69 titled “principles to be observed by political parties” adopts the criterion of “becoming a hotbed of prohibited acts” for making dissolution of political parties difficult; and the criterion intends to make the prohibited acts concrete with such expressions as “(such acts) being committed intensively by the members of that party” and “(such acts) being realized directly by the organs of the party in a determined manner”.

The new arrangement also provides that “it may be decided to deprive the political party in question of state support partially or completely, depending on the gravity of the acts covered by the suit”, and thus makes dissolution no longer the only sanction that can be applied.

Another amendment aiming to make difficult dissolution of political parties is contained in Article 33. This amendment made to Article 149 of the Constitution specifies the quorum required for the Constitutional Court’s decisions on dissolution of political parties as “three fifths”. It is very likely that these amendments will achieve an expansion and development in the fields of freedoms of thought, organization and the freedom of engaging in political activity, though it will depend to a great extent on the attitude of the Constitutional Court from now on.

14. National Security Council

Article 32 of the package re-arranges the Article titled “National Security Council” of the Constitution, emphasizes that the decisions of the Council are of the nature of “recommendation”, and reinforces this point by substituting the wording: “shall evaluate” for the wording: “shall give priority” which existed in the former text.

Such arrangements aiming to place the National Security Council within the framework of the democratic state of law bring in their wake positive developments from the standpoint of the regime of freedoms as well. It would be too optimistic, however, to expect that the actual role played by the National Security Council in the political system will change essentially with such arrangements.

15- Provisional Article 15

One of the positive steps taken with the package of Constitutional amendments is removal of last paragraph of provisional Article 15 which provided legal protection to the 12^th September regime. It has thus become possible to assert that the laws, decree-laws and other acts issued during the period between 12 September 1980 – 6 December 1983 are in breach of the Constitution. Considering that a big part of the arrangements made in the said period embodied provisions that restricted the democratic process and the regime of freedoms, it can be stated that this amendment is also a significant step forward from the standpoint of democratization and human rights.

ADJUSTMENT LAWS

The amendments to the Constitution may have a very limited effect on the social and political life unless new arrangements and necessary changes to the related laws are made. In fact, constitutional amendments would not be sufficient alone in meeting the political criteria set forth in the APD; a variety of amendments to the existing laws and enactment of new ones is also necessary. In that context, three different packages of bills named "the adjustment bills” have been pushed through the GNAT swiftly and after short intervals. Now, let us make a brief analysis of those packages in terms of democratization and human rights.

1. The First Adjustment Package

“The First Adjustment Package” consists of the Law No. 4744 Amending Some Laws, which cleared the GNAT on February 6, 2002. This law amended Articles 159 and 312 of the Turkish Penal Code, Articles 7 and 8 of the Law to Fight Terrorism, Article 16 of the Law on Establishment and Trial Procedures of the State Security Courts as well as Articles 107 and 128 of the Code of Criminal Procedure.

1. Changes to the Turkish Penal Code (TPCTurkish Penal Code )

The latest amendments to two provisions of the TPC, which were considered related to offenses committed by expressing opinions and widely implemented in that direction, were aimed at meeting the APD's criteria on freedom of thought and fulfillment of the commitments set forth in the National Program. In that context, punishments provided by Article 159 were redefined and the lower limit, which was one year, was maintained while the six-year upper limit was reduced to three years. In addition, "heavy imprisonment" was transformed into "imprisonment" while the "heavy fine" was excluded.

With the change to Article 312 of the TPC, the term "aggravating reason" at the end of the second paragraph was deleted and it was redefined as an element of the offense covered by paragraph two with the addition of the phrase "in a manner that could be detrimental to public order." Thus, any person "who has openly fomented enmity or hatred among the public based on differences between social classes, races, sects or regions in a manner that could be detrimental to public order" will be punished under this Article, which is actually aimed at limiting the scope of Article 312. The act of "fomenting enmity and hatred" will not be sufficient alone to punish a person accused of committing the offense defined in this Article, and the judge will consider whether the statement made is capable of fomenting enmity and hatred "in a manner that could be detrimental to public order." One can say that this is a heartening development in the name of freedom of thought. However, it should also be born in mind that the anticipated positive effects of the amendment hinges on the courts' approach and interpretation, that is to say "implementation". We should also add that the amendment to Article 312 constituted a positive in that it also abolished fines.

1. Amendments to the Law to Fight Terrorism (LFT)

With the change to the second paragraph of Article 7 of the LFT the words "in a manner encouraging people to resort to terrorist methods" were incorporated after the words "those who have spread terror-related propaganda," to emphasize that not every propaganda, but only those who encourage people to use terrorist methods will be deemed to constitute a crime, thereby limiting the scope of the offense as compared with the provision of the former law.

The amendment to Article 8 of the same law seems somewhat complicated. The former text contained only one type of the offense, that is to say "simple offense", whereas the term "aggravating reason" was incorporated into the Article. During debates and parliamentary deliberations that preceded enactment of the adjustment package, it was suggested that propaganda, as defined in the Article, should be deemed to constitute a crime only if "it was spread in a manner encouraging people to resort to terrorist methods". However, this proposal was not accepted and "spreading of propaganda in a manner encouraging people to resort to terrorist methods" was defined as a matter of aggravation. A direct comparison between the previous text and the new text of the Article will help us to see the difference more clearly. The former text of the Article read as follows: "Spreading of written or verbal propaganda and organizing meetings, demonstrations and marches aimed at destroying the indivisible unity between the State of the Republic of Turkey and its territory and nation is hereby prohibited. Any person, who has spread such propaganda or organized such meetings, shall be sentenced to imprisonment ranging from one year to three years and a heavy fine of. The punishment shall be increased by a third should the crime be perpetrated in a manner encouraging people into resorting terrorist methods." The new text after the amendment is as follows: "Any person, who has spread written, verbal or visual propaganda or organized a meeting, demonstration or march in an effort to destroy the indivisible unity between the State of the Republic of Turkey and its territory and nation, shall be sentenced to imprisonment ranging from one year to three years and a heavy fine ranging between one billion Turkish liras and three billion Turkish liras unless they act warrant a heavier punishment. The punishment shall be increased by a third should the crime be perpetrated in a manner encouraging people into resorting terrorist methods."

It is clearly seen that the change to Article 8 of the Anti-terror Law limits the freedom of thought rather than broadening its scope.

c) The Amendment to the Law on State Security Courts

and

d) The Amendment to the Code of Criminal Procedure

These two issues should be analyzed together with the amendments in the Second Adjustment Package.

According to those changes;

• The four-day detention period for any person, who has been captured or detained in a region where state of emergency is in force, may be extended to seven days (ten days before the amendment) subject to the Public Prosecutor's request and a court decision (which was not required under the previous text).
• In cases heard by the State Security Courts (SSG), the detainee may consult with his lawyer after the Public Prosecutor has issued a written order to extend his or her detention period (this was not stipulated by the previous Article in connection with the SSG.
• A relative of the detainee or any other person who may be designated by the detainee shall be promptly informed of the detention and the order extending the detention period including cases coming under jurisdiction of the State Security Courts (this was not stipulated by the previous Article in connection with the SSG.
• Civil servants, who are deemed to be liable for damages paid by the State as a result judgments handed down by the European Court on Human Rights in connection with torture-related crimes, may be required to reimburse such damages (the previous Article did not include a clear provision in respect of this matter).

Some amendments were made on September 18, 2002 in order to approximate the "Regulation on Apprehension, Detention and Interrogation" as an inevitable consequence of those changes. The Regulation was also amended the former provision about the conditions related to the physician and the person being subject to medical examination, which was described as unacceptable by the medical establishment (the new provision strictly stipulates that no person other than the physician and the patient may be present during the examination without any exception).

Noting some positive aspects of those changes, the following assessments may be made in terms of prevention of torture.

Firstly, the amendments may be classified under four sub-headings:

1. It is an absolute requirement that any person, whose liberties have been limited in a manner as set forth in Article 5 of the European Convention on Human Rights Convention must be promptly arraigned (Article 5 of the ECHR: "Any person, who has been arrested or detained, shall be promptly referred to a judge or any other official who has been authorized by law to carry out judicial functions.") Therefore, the debates about detention period should be noted regarding the sincere political will, which is essential for prevention of torture.
2. It is seen that the issue of consulting with the lawyer during detention remains as a vague point in the context of the right of defense and contains certain restrictions.
3. The provision about informing a relative or friend of a person apprehended contains certain vague points as it says "promptly subject to the public prosecutor's order."
4. The possibility of having recourse to responsible public officials in order to recover damages paid in connection with cases of torture may overshadow the state's liability including damages in the case of torture. Therefore, the possibility of having recourse to public officials in connection with cases of torture could hardly be regarded as a positive step by itself.

The Second Adjustment Package

The "Second Adjustment Package" consists of the "Law No. 4748 Amending Various Laws", which was passed by the GNAT on March 26, 2002. This law amended the Provincial Administration Law, the Press Law, the Civil Servants Law, the Political Parties Law, the Associations Law, the Law on Meetings, Demonstrations and Marches as well as the law on Establishment and Responsibilities of the Gendarmerie Command. Now, let us have a close look on some aspects of those changes that we consider significant:

a) The Press Law

b) The Civil Servants Law

One of the interesting provisions included in the package amends the Civil Servants Law. This change provides that "any civil servant, who is held liable for any damages paid by the State in accordance with a judgment handed down by the European Court on Human Rights in connection with cases involving torture or cruel, inhuman or humiliating treatment of people, may be required to reimburse such damages." In fact, this could be described as a restatement of an already existing legal avenue, rather than a new opportunity.

The clear statement that the political authority may have recourse to any public official, who has employed torture, may be expected to have a deterrent effect in practice. From the standpoint of the domestic legislation and the mechanisms provided for by the European Convention on Human Rights, however, one could say that implementation of this provision is almost impossible. Therefore, lauding this provision as a major legal step in the fight against torture would be an overstatement.

c) The Political Parties Law

The changes to Articles 101, 102 and 103 of the Political Parties Law are designed to ensure alignment with the latest constitutional amendments.

d) The Associations Law

This matter will be analyzed together with the amendments in the third adjustment package.

e) The Law on Meetings and Demonstration Marches

Various Articles of the Law on Meetings and Demonstration Marches have been amended in order to align them with the latest changes to the Constitution. Considered as a whole, however, it is clear that those changes fall short of allowing an efficient exercise of this right although they contain some facilitating provisions. For instance, the age limit for exercising this right was lowered from 21 to 18 as a result of a change to Article 9 of the Law while the requirements that "the Chairman and members of the Regulatory Council shall document that they have a permanent abode in the place where the meeting is to be held" and that "he shall not be a person, who could be investigated or prosecuted subject to an authorization or enjoy legislative immunity" were lifted. It is clear that those provisions broadened the scope of the freedom and thus facilitated its use. Nevertheless, there is no doubt that this effect will be relative and limited unless other limitations, which constitute an intervention in the gist of this right.

With the changes to Article 17 of the Law, the reasons for banning or postponing a meeting were generally reduced. In that context, the possibility of banning or prohibiting a meeting "if there is a strong probability that acts designed to destroy the Republic's basic characteristics or with the objective of safeguarding the State's indivisible unity with its territory and nation" was eliminated. Meanwhile, Article 19 was amended to replace the word "prohibition" with "postponement" of meetings to be organized in provinces or districts. According to the new text, "The Regional Governor may put off all the meetings in one or more provinces within the region or in one or more districts of a province for a maximum period of three months in order to safeguard national security and public order or prevent perpetration of crimes or protecting public health or moral or rights and freedoms of other persons".

The right to organize meetings, demonstrations or marches creates the intended effect or is functional only when it is exercised by people at a time when they consider appropriate for influencing the public opinion or the political authority. From this standpoint, there is effectively no difference between a ban and a postponement for two or three months. Therefore, there could be no meaningful improvement regarding this right unless the provisions, which allows the government to use its discretion regarding postponement in the widest manner.

The Third Adjustment Package

“The Third Adjustment Package” consists of the "Law No. 4771 Amending Various Laws" which was endorsed by the GNAT on August 3, 2002. More comprehensive than the first two packages and covering more "sensitive" issues this package amended the laws providing for the death penalty (the Turkish Penal Code, the Law on Prohibition and Prosecution of Smuggling, the Forestry Law, the Juvenile Courts Law, the Law on Execution of Punishments, the TMK), the Turkish Penal Code, the Associations Law, the Law on Meetings, Demonstrations and Marches, the Foundations Law, the Code of Civil Procedure, the Code of Criminal Procedure, the Law on Establishment and Broadcasts of Radio and Television Stations, the Press Law, the Law on Responsibilities and Powers of the Police, the Law on Learning and Teaching Foreign Languages and the Free Zones Law.

a) The Death Penalty

Article 1 of the Law abolished the death penalty in terms of all crimes with the exception of "crimes perpetrated during a war or under circumstances indicating that there is an imminent war". Therefore, this amendment, which constitutes a step beyond the change to the Constitution, is also compatible with Protocol 6 to the European Convention on Human Rights.

b) Turkish Penal Code

The modification to Article 159 of the TPC is aimed at preventing "criticism" from being considered as an offense under the Article. According to the new text, "written, verbal or visual expression of opinions only aimed at making criticisms shall not constitute a reason for punishment". In fact, it is a well-known and recognized rule that "criticism" is protected and safeguarded by freedom of thought and therefore, it should not considered an offense even if there is no such provision. This being the case, this new provision incorporated into the Article can be regarded as a confirmation of a fact. Nevertheless, it is also a fact that this distinction is not taken into consideration in practice and the courts interpret the provision broadly and even punish some statements, which clearly constitute criticisms. In the face of this reality, one could say that the change to Article 159 will serve as a sort of warning issued to public officials responsible for enforcement of laws.

c) The Law on Meetings and Demonstration Marches

In spite of the revision to Article 3 of the Law on Meetings and Demonstration Marches, the existing authorization procedure, which requires that foreign nationals intending to attend meetings, demonstration marches or take part in other types of activities in Turkey obtain a prior permission, is preserved, but a "notification" procedure allowing foreign nationals to address any meeting or demonstration march organized in accordance with this Law or carry posters, placards, pictures, plates or other objects has been initiated. As a result of an amendment to Article 10 of the Law, a Turkish citizen is required to give notice for organizing a meeting forty-eight hours in advance, rather than seventy-two hours, which is regarded as a facilitating provision. Our conclusions outlined above also apply to those changes. In other words, the changes are superficial rather than being directed to the essence of the matter and therefore are not conducive to a serious achievement.

d) Assessment of the modifications to the Associations Law

and

e) the Foundations Law:

The following is an analysis of the changes to Article 34 of the Constitution in January 2001, to some Articles of the Civil Law in November, and to some Articles within the framework of three separate "Democracy Reform Packages" in February, March and August 2002 from the standpoint of associations and foundations.

FROM THE STANDPOINT OF CONSTITUTIONAL AMENDMENTS

Article 12 of the Law No. 4709 Amending Some Articles of the Constitution of the Republic of Turkey modified Article 33 of the Constitution governing associations and foundations. The first sentence of this Article, which previously read "Every person has the right to found an association without obtaining prior permission. Submission of the documents and information defined in the Law to the competent authority shall be adequate to establish an association" was replaced with the following sentence: "Every person shall have the right to establish, join or terminate his or her membership in an association without obtaining prior permission." It is seen that this amendment defines establishment of an association as a freedom rather than a right. In addition, the provision that submission of documents and information to the competent authority for establishing a foundation will be considered sufficient has also been deleted. Instead of this sufficiency criterion, the following paragraph was incorporated into Article 13 of the Constitution entitled "Limitation of Fundamental Rights and Freedoms: "The freedom to establish an association may only be limited by law due to certain reasons including national security, public order, prevention of perpetration of crimes, public health and public morality and protection of other people's rights." This paragraph contains some of the reasons for limitation abolished by this new law. Thus, abolishment of the general reasons for limitation defined in Article 13 and the positive amendment to the Constitution have been neutralized by incorporating similar restrictions into the Article governing associations and foundations. In conclusion, we can say that the former text of Article 33 was more democratic.

II. FROM THE STANDPOINT OF ADJUSTMENT LAWS

The Law No. 4748 Amending Various Laws, which was passed by parliament on March 3, 2002 under the title "Second Adjustment Laws", revised Articles 4, 5, 6, 34, 38 and 43 of the Associations Law No. 2908 of October 6, 1983 and abolished Articles 7, 11 and 12 of the said Law. The changes and annulments are as follows:

As a result of the amendment to Article 4, persons, who have committed an offense by posting placards, which is defined as a crime in Articles 536 and 537 of the TPC, and members of a political party who have caused closure of a political party because of their acts or been permanently expelled from their party pursuant to paragraph 101/d of the Political Parties Law No. 2820, who were counted among persons not allowed to set up a foundation, will now be able to establish such organizations.

The phrase in paragraph 6 of Article 5 entitled "Prohibited Associations", which read "...creating a minority by claiming that there are minorities based on racial, religious, cultural or linguistic differences on the territory of the Republic of Turkey or by protecting, developing or spreading languages and cultures other than the Turkish language or culture." was replaced by ".... creating racial, religious, sectarian, cultural or linguistic differences or a minority based on such differences on the territory of the Republic of Turkey." Thus, existence of different cultures were recognized, but the right to establish a foundation continued to remain subject to a restriction based on the offense of creating a minority.

With the change to Article 6 entitled "Prohibition on Use of Certain Names, Signs and Languages" paragraphs 3 and 4, which prohibits use of the languages banned by law and to use placards, plates, records, sound and image tapes and leaflets in such languages have been abolished. As a result of this amendment the ban on languages other than Turkish and their use has been lifted.

Article 7 entitled "Ban on International Activities" was fully rescinded thereby lifting the prohibition on establishment of associations intending to carry out international activities, becoming members of associations founded abroad and opening in Turkey branches of associations based abroad.

Article 11 entitled "International Activities of Associations Established in Turkey" was abolished, putting an end to the requirement that associations intending to carry out international activities obtain the Council of Ministers' permission.

Article 12 entitled "Activities of Foreign Associations in Turkey" was abolished; putting an end to the requirement that associations based abroad and intending to carry out activities in Turkey obtain the Council of Ministers' permission.

As a result of the amendment to Article 34 in Part Four entitled "Federations and Confederations" the condition that associations intending to found a federation must have the status of associations serving public benefit thereby facilitating establishment of federations.

The sentence, which read, "Student associations may not undertake any activities other than their objectives" in Article 38 entitled "Objectives and Activities of Students' Associations" was deleted, but the restriction on the activities of students' associations was preserved without any change.

Article 43 entitled "Relations With Foreign Associations and Organizations" was amended to lift the requirement that associations first obtain permission from the Ministry of Interior before inviting members of foreign associations and organizations or to send their members to other countries. According to the new text of the Article, which facilitated international relations of associations and foundations, giving notice to governors' offices will be adequate in order to send representatives abroad.

III. FROM THE STANDPOINT OF ADJUSTMENT LAWS

Article 3 of the Law No. 4771 Amending Various Laws, which was ratified on August 8, 2002, reworded Articles 11 and 12 of the Associations Law, which were abolished, and amended Articles 15, 40, 45, 46, 62 and 73.

Section A of Article 3 of the Law reintroduced Article 11, which stipulates that international activities of associations founded in Turkey and activities undertaken by foreign associations and organizations in Turkey may be prohibited by a decision of the Council of Ministers. Article 11 was revised to reintroduce the condition to obtain the Council of Minister's permission to place the right to maintain foreign relations, which was granted to local associations and foundations as part of the "reform" process as well as activities carried out by foreign associations in Turkey, were placed under the government's supervision again.

Section B of Article 3 of the Law reintroduced Article 12, which was abolished under the second adjustment laws and stipulates that foreign associations must obtain permission of the Council of Ministers in order to open a branch in Turkey, thereby withdrawing the liberty granted earlier.

Section A of Article 4 incorporated two paragraphs into the last part of Article 1 of the Foundations Law No. 2762 of June 5, 1935. The new paragraphs acknowledge that religious community foundations may acquire immovable property and take action in connection therewith subject to the Council of Ministers' authorization and that immovable property, which is controlled by, donated to or inherited by such foundations may be registered in their names.

Section B of Article 4 incorporated an additional Article to the Decree With Force of Law No. 227 of June 8, 1984 on Establishment and Responsibilities of the Foundations Directorate General. The new Article states that subject to the Council of Ministers' decision foundations established in Turkey may join foundations or organizations founded abroad or open branches abroad or cooperate with organizations pursuing similar objectives and that foundations established abroad may, subject to authorization by the Council of Ministers, carry out activities, open branches, establish organizations or join or cooperate with organizations formed by such foundations. The same section provides that such foundations will be subject to the laws and regulations governing the foundations established in accordance with the Turkish Civil Code.

f) Retrial (HUMK and CMUK)

The new provisions incorporated into the HUMK (The Code of Civil Procedure) and the CMUK (the Code of Criminal Procedure) provide the possibility of a retrial due to the ECHR's rulings. According to those provisions, retrial will be allowed only if "it has been determined by the European Court on Human Rights that a final judgment has breached the Convention on Protection of Human Rights and Primary Rights or its protocols and it has been further established that such breach has, in terms of its nature and gravity, led to consequences which cannot be remedied by a compensation established in accordance with Article 41 of the Convention." In spite of the fact that the procedure is quiet complicated and not applicable retroactively, provision of this remedy is a major step taken in order to include ECHR standards in local legislation and thus its alignment with the ECHR.

g) Radio and TV Broadcasts in Different Languages and Learning Such Languages

With an additional provision incorporated into Article 4 of the Law on Establishment and Broadcasts of Radio and Television Stations, a liberty commonly known as "broadcasting in mother tongue" was made a part of our legal system. According to that provision, "Radio and television programs in different languages and dialects traditionally used by Turkish citizens in their daily lives may also be broadcast." It goes without saying that inclusion of this liberty in our legal system will not automatically bring about an efficient use of this right. The regulation to be issued and the stand to be taken by the government will play a determinant role in this matter. Given Turkey's experience in the past 20 years, however, "legal recognition" should certainly be regarded as a crucial step. A taboo has been broken directly through a legal arrangement, which will make serious contribution to "normalization" process independent of its implementation.

Another provision incorporated into Article 2 of the Law on Learning and Teaching of Foreign Languages introduced a right, which we can describe as "learning one's mother tongue." According to this provision, "subject to provisions of the Law No. 625 of June 8, 1965 on Special Education Institutions special courses may be opened for learning different languages and dialects traditionally used by Turkish languages in their daily lives." The judgment outlined above can also be repeated for this provision.

In conclusion, it can be said that those amendments should not be belittled as initial steps although they have brought about changes, which could be described as "insignificant" by international standards.

The Susurluk Scandal

Once the legal process in the so-called Susurluk case had ended at the beginning of 2002 and the defendants started to serve their prison terms interesting developments were observed. Already before the Court of Cassation announced its verdict the daily “Star” started a series with interviews of one of the defendants, Korkut Eken, under the title of “Hero”. In March several general went public stating that Eken had not acted outside the chain of command and called him a heroic soldiers. Further defendants gave interviews to newspapers or appeared on TV.

On 15 January the 8^th Chamber of the Court of Cassation confirmed the verdict of İstanbul SSCState Security Court . () Presiding Judge Naci Ünver commented on the decision:

“Having inspected the verdict on İbrahim Şahin and 13 co-defendants in regards to sufficiency of the evidence, application of the correct provision and the right sentences we also considered the oral and written defense of the lawyers and their clients and decided unanimously that the verdict of İstanbul SSC No. 6 had to be confirmed.”

The reasoned verdict stated that the gang had violated the Constitution. Calling it the fight against terrorism the defendants had formed a system dominated by illegal acts. The verdict also hinted at the connection to Abdullah Çatlı, who had been wanted for drug offences and murder, the police chief Hüseyin Kocadağ and MP Sedat Bucak, which required research of many aspects including inner circles of the State.

The defendants had acted together with “kings of gambling”, drug bosses, killers and had formed a criminal gang according to Article 313 TPC. They also had violated Article 6 of the Constitution that provided that nobody could usurp rights left to the authority of the State. The reasoned verdict also argued that some officials and helpers that could not be tried (for instance Mehmet Ağar and Sedat Bucak, because of their parliamentary immunity) had to be tried. ()

The defendants İbrahim Şahin, Abdülgani Kızılkaya, Ayhan Çarkın, Sami Hoştan, Oğuz Yorulmaz, Haluk Kırcı and Ercan Ersoy appealed to the chief prosecutor at the Court of Cassation asking for a correction of the verdict. The prosecutor rejected this demand stating that such a demand had already been raised in the appeal. The other 7 defendants did not ask for a correction of the verdict.

In March the chief prosecutor at the Court of Cassation rejected the demand of Korkut Eken to correct the sentence imposed on Korkut Eken stating that the fact that he had been convicted for being the founder and leader of a criminal gang and his success in the fight against terrorism were two separate things.

Once the verdict had been confirmed the police officers among the defendants were discharged. The Ministry of the Interior took the decision for the defendants İbrahim Şahin, Ayhan Akça, Ziya Bandırmalıoğlu, Ayhan Çarkın, Ercan Ersoy, Enver Ulu, Mustafa Altunok and Oğuz Yorulmaz based on Articles 48 and 98 of Law 657 on Civil Servants. Later it was established that İbrahim Şahin had already been retired and that he would receive his pension. His imprisonment started on 21 February.

Korkut Eken and Ayhan Çarkın, who had been sentenced to 4 years’ imprisonment, went to prison on 1 March. A group of 500 people staged a demonstration in front of Korkut Eken’s house and before he surrendered to Ankara Police HQ he visited former Interior and Justice Minister Mehmet Ağar. Ayhan Çarkın surrendered in Lüleburgaz district (Kırklareli). The defendant Sami Hoştan was apprehended in his house in Beykoz (İstanbul), but he was released for a while days, because of poor health.

Ayhan Akça and Ziya Bandırmalıoğlu surrendered in Artova district (Tokat) on 4 March. On the same day Ercan Ersoy, Oğuz Yorulmaz and the driver of Şanlıurfa MP Sedat Edip Bucak, Abdülgani Kızılkaya, surrendered in Selçuk district (İzmir).

Under reduction of the time spent in pre-trial detention İbrahim Şahin had to serve 694 days, Korkut Eken 879 days, Sami Hoştan 555, Ali Fevzi Bir 467, Enver Ulu 445, Ayhan Akça and Ziya Bandırmalıoğlu 402, Abdülgani Kızılkaya 393, Mustafa Altunok 382, Ayhan Çarkın, Ercan Ersoy and Oğuz Yorulmaz 296 days. The other two defendants were under arrest in connection with other cases. Yaşar Öz had a remaining time in prison for 481 and Haluk Kırcı for 431 days.

On 7 August İbrahim Şahin was released because of high tension and complaints with the brains. He would have to go back to prison, once the treatment is over. His lawyer Ömer Yeşilyurt stated that his client was temporarily released according to Article 399 TCPC.

Sami Hoştan started his imprisonment on 26 April, after medical treatment.

In February Ali Fevzi Bir fled abroad, when allegations came up that he was involved in bribing referees of football matches making money on bets, the so-called “cheat in football gang”. () On 6 March Ali Fevzi Bir was apprehended in Germany. He was extradited on 24 May and on 25 May he started his imprisonment in Kartal Prison. The trial in connection with cheating in football matches is continuing.

Ayhan Çarkın was released from Lüleburgaz Prison on 1 November, after his lawyers had handed in a petition asking that the time he spent in connection with other trial should be counted for the execution of the sentence. Oğuz Yorulmaz and Ercan Ersoy were released from Dalaman Prison on 19 November. They had been acquitted in the case on the killing of Ömer Lütfü Topal, but spent some time in pre-trial detention.

Discussion on Korkut Eken

After the Susurluk accident on 3 November 1996 not many voice of the “deep State” could be heard, apart from Mehmet Ağar, who said, “we carried out a thousand of operations” and the then Prime Minister Tansu Çiller, who had stated, “anyone, who fires a bullet for the State is a hero”. The “deep State” started to speak, when the Court of Cassation was about to announce its verdict. In particular, the defendant Korkut Eken was presented as the brave man, working for the State.

The words of the generals, “he remained within the chain of command” did not trigger a long discussion, because everybody knew that during the time Korkut Eken was in office (1992-1996) the number of unclarified political killings reached their peak in East and Southeast Anatolia. Short reference should be made to the findings of the Inquiry Council of the Prime Ministry.

Conclusions that the Council reached in 1997 regarding the Susurluk scandal were expressed as follows: “Believing that it was not possible to combat supporters of illegal separatist terrorist organizations by legal means, some officers started to consider other methods. Some high-ranking officers at the Security General Directorate and its Special Operations Department, as well as some police officers at that Department, formed an organization including some civilians who were known to them from the past and who were wanted for crimes. In this way, they perpetrated actions and activities against some persons whom they considered supporters of terrorist organization.”

“What is Susurluk? The unclarified killings stopped in 1996 all at a sudden. This is Susurluk. Maybe the beginning are the words of ex-Prime Minister Tansu Çiller, when she said that the names of the businessmen, who support the PKK, were in her hands. After that the executions started. The executions in the triangle of İzmir-Adapazarı and Bolu depended on the intense activities of members of the Police, gendarmerie and repentant confessors.”

First Article in the Contract for Heroes /Ertuğrul Özkök (Hürriyet-12.02.2002) We should have a closer look at the sentence of Ayhan Çarkın, who was convicted in the Susurluk trial: “The State should not have taken us down from the mountains”. If this State has a national policy document it should also have a program of what to do with those, coming down from the mountains. A State that calls itself unitarian should have a very serious program for this people its sends to fight in the mountains or against organizational cells. NATIONAL EVALUATION Today I shall try to make a national analysis, something, which nobody dared to deal with until today. I must admit that this will be a cowardice article, because we all know that some kind of intellectual terror blows in this country maintaining to be strictly democratic… Let us go a little back to the days, when this country led one of the biggest wars for its existence. The PKK had erected its flag on top of the mountains. In those days the 9th State President told them: “Don’t be afraid, we won’t create a second Muglali-event”. This is what he said and he was right. Yugoslavia had been split in almost five parts. The great Russian Empire was more or less dissolved. And only Turkey was able to win this unhappy war. Now let us ask: how did Turkey succeed? With the people that supported the army, the armed and security forces with great patience. With the people, who fought for their lives in the mountains and, of course, with the word given to them. COMING FROM THE MOUNTAINS These people did their job in the mountains, successfully. Later they were taken down. Some did not know what to do and retreated. Others got involved in dirty business. There is not much concrete evidence, but some of them will go to prison these days. This is justice, as they say. Unfortunately wars are not only won with ordinary armies. Every country needs such “secret” people. THE 29TH UPRISING This is even true for the most democratic of all countries. Remember New Zealand that bombed a ship of “Greenpeace” resulted in the death of one person. French “special forces” did it and today they walk around as honorable people. I do not say that we should be tolerant to the Mafia or to old heroes, who joined the Mafia. What I say is something else. Living in an unfortunate geography we might need such people again in the future. This country saw 29 uprisings on ethnic grounds. No one can guarantee that there won’t be uprising number 30. Don’t forget. The center of the DHKP-C is 500 meters away from the center of the European Union in Brussels. Don’t forget that blood handed leftist organization and fanatic religious organization that bury their victims in the cellars are still active. We need people, who fight against them, today and tomorrow. This country promised not to create another Muglali event for the fighters in the mountains. One monument for heroic commanders in the garden of the General Staff belongs to Muglali. One day every hero has to come down from the mountain. Important is that these heroes make a historic sacrifice. They have to stay anonymous, even after they came down from the mountains. This has to be the most secret article in the national policy document. ARTICLE ONE Once the unknown hero in the mountain steps down, he will act according to the glory of his duty. He will not get involved in dirty business. But the State will stick to its promise. This has to be Article 1 of the contract for heroes.

One day after this article of Ertuğrul Özkök in Hürriyet the dailies “Hürriyet” and “Sabah” presented comments of former generals praising Korkut Eken as a hero on 13 and 14 February. The generals, who made such remarks included: Doğan Güreş (Chief of General Staff between 4 December 1990 and 30 March 1994), Necati Özgen (former commander of the gendarmerie for general order), Hasan Kundakçı (former commander of the gendarmerie for general order), Cumhur Evcil (chairing the department for special operations between 1984 and 1986), Teoman Koman (former state secretary for the secret service MİT and General Commander of the Gendarmerie), Atilla Kurtaran (retired general), Adnan Doğu (former General Commander of the Gendarmerie).

Interestingly, these remarks came one day after Korkut Eken had appealed to the chief prosecutor at the Court of Cassation asking for a correction of the verdict.

How did you know Korkut Eken?/Tuncay Özkan (Milliyet-14.03.2002) (...) Let me ask some questions to the generals fighting with the judiciary: “Korkut Eken is share holder of the First Merchant Bank in Cyprus. Other shareholders are the Russian Mafia and Hakkı Yaman Namlı, who was convicted of fraud against the Central Bank. Did you approve of Korkut Eken, becoming a share holder?” Did you know of the partnership between Korkut Eken and Tarık Ümit, a spy for MİT and drugs dealer? Did the transfer of cars happen on this basis and why did you feel a need for it? Tarık Ümit is a drugs dealer, married to a German woman, who informed the German secret service. The information can be found in the Susurluk report. Later Tarık Ümit disappeared. He was last seen with Susurluk defendants. Did you encourage them to make this contact? Did you tell Korkut Eken to make friends with drug dealers, kings in gambling, their bodyguards and those, washing black money? Why did you ask him to do this? What did the arms cost that they were given? Who benefited from the transfer? Where are the arms now? Where are the arms that Korkut Eken were given? If the State does not have them, do you have them? What kind of heroism do you see in kidnapping Haluk Kırcı, suspected of having killed seven young men, from the hands of the police? Have you read his testimonies? Did all this happen with your consent? Did Korkut Eken meet Abdullah Çatlı with your knowledge? Did you order him to be together with suspected killers? If Korkut Eken is a symbol for the fight against terrorism, what about the thousands war-disabled persons? Where were you during the trial? Do you think the Panel of Chambers in the Court of Cassation is wrong? Did you ever read the verdict? Did the court miss anything?” There are tens of further question I might ask the generals. I believe that they have not done their homework properly. Korkut Eken was not tried for what he did as a soldier. Nobody asked him about unclarified killings and acts of terror. İstanbul SSC was sensitive enough not to react when the defendants shouted that they could tell them a lot on other actions. None of the defendants was asked to become a repentant confessor. They were only tried for illegal actions. There would be no problem, if the three generals would speak about Korkut Eken as a soldier and praise him. He retired in 1989. The generals are trying to analyze things that happened afterwards by looking at the things that happened before. In doing so, they do not only praise Eken, but the crimes that are the background for the verdict on the Susurluk scandal. If the prosecutor indicts them for these unfortunate remarks, we shall see, how much they knew of the relations that I have outlined above. No screaming then. The public prosecutor in İstanbul-Bağcılar started an investigation against 6 generals on the assumption that Article 312/1 TPC (praising a crime) might have been violated. Cumhur Evcil and Atilla Kurtaran testified on 20 June. Reportedly they stated that they had no knowledge of the crimes in the Susurluk trial. In September the public prosecutor in İstanbul-Bağcılar decided not to bring charges against anybody. Retired judge Sedat Karagül, who had heard the Susurluk case at İstanbul SSC until the verdict, reminded of the fact that members of the army and gendarmerie had not testified to the Susurluk Commission and stated on the comments by the generals: “The committed acts remained in the dark. The defendants in the Susurluk trial stated that they carried out orders, but did not say what kind of orders. It is not clear, what the soldiers are now trying to say. According to the papers they claim that the defendants could not make themselves understood. Could it be that their conscience disturbed them and they want to tell other things?”

The Broken Link of Susurluk Speaks /Enis Berberoğlu (Radikal-18.03.2002) (...) Don’t forget that Öcalan had not been captured, when the Susurluk accident happened. Blood streamed in the mountains. Therefore, nobody asked the armed forces ‘what’s going on?’ The commanders did not inform the government and did not incline to testify to the inquiry commission. The political responsibility did not become part of the criminal proceedings. While the actors went to prison their partners stayed in parliament. The generals are now prepared to speak in order to rescue their old brothers of arms. Sure, there is quite a lot to say… On 4 November 1993 Prime Minister Tansu Çiller said in the Holiday Inn Hotel in İstanbul: “We are confronted with a terror movement that has got the character of a widespread militia. We are in possession of the names of businessmen and artists, who are blackmailed by the PKK. We will ask to account for that.” Dear generals, do you know what happened afterwards? If you, would you tell us? The only official document on Susurluk is the report of the commission. It stated: “… but what was done to normal citizens, who had no connection to the PKK and were only known to be Kurdish activists, harmed all the activities very much.” (Page 105) Dear generals, do you know what happened to common citizens in the Southeast and why it was harmful for the fight against terrorism? If you, would you tell us? What do you know about the coup in Azerbaijan? Where are the weapons, where the name of Korkut Eken is mentioned? Who used them? If you know anything, please explain in the name of patriotism. Explain so that the politics of blood feud and trade with corpses can be closed. Let us issue the bill for the fight of brothers that resulted in the death of 30,000 lives, the imprisoned ones should not stay alone and afterwards let us forget these times…

Interestingly, the generals did not remember, who they had spoken to, when their statements were published in Hürriyet and Sabah. AKP MP Mehmet Elkatmış, who had been chairing the parliamentarian commission on Susurluk, repeated that the members of the armed forces had not testified. The Commission had invited Teoman Koman, General Commander of the Gendarmerie, twice. He had argued that he was only entitled to inform the State President, the Prime Minister and the NSCNational Security Council . His second rejection had even been stronger. Elkatmış said: “If he had to say something on Korkut Eken, why did he not testify to the Commission? We asked the Army and were told that it was not their business. Why are they giving support now? At the time we said that Susurluk had reached the State organs and today we are shown that we were right.”

Sadık Erdoğan, chairman of Ankara Bar Association, Yücel Sayman, chairman of İstanbul Bar Association and Noyan Özkan, chairman of İzmir Bar Association held a press conference on 16 March alleging that the statements of Doğan Güreş, Necati Özgen, Hasan Kundakçı and Cumhur Evcil in connection with Korkut Eken were confessions to have committed a crime. They complained that neither the connection of the gang to parliament had been researched, nor had connection to the security forces been investigated and likewise the armed forces had remained untouched.

On 17 March Ufuk Uras, chairman of ÖDPParty for Peace and Solidarity filed an official complaint against the generals on charges of forming a gang to commit crimes and praising criminal

In April the public prosecutor in İstanbul decided not to be competent in the case against the retired generals Doğan Güreş, Necati Özgen, Teoman Koman, Adnan Doğu, Hasan Kundakçı and Cumhur Evcil. He sent the file on praising criminal acts (Article 312/1 TPC) to the public prosecutor in Bağcılar (İstanbul) and the file on forming a criminal gang to the public prosecutor in Ankara, because that had been the place of their employment.

The Retired Generals and the Susurluk Gang /Prof. Dr. Zafer Üskül (BİA-18.03.2002) (...) The statements by the generals have to be evaluated from three aspects. First, are they in contravention to Article 138 of the Constitution that prohibits attempts to influence the judiciary? The timing and the wording of the statements support such a suspicion. The chief prosecutor at the Court of Cassation rejected the demand of correcting the verdict. That shows that he was not influenced by the remarks. This does not prevent an investigation against the generals on a violation of Article 138. Are their statements a confession that Article 137 of the Constitution was violated? This Article provides that any public staff has the duty not to fulfill orders that are against the laws, statutes, regulations or the Constitution. He can only be accused, if the order is repeated in written form. This means that the one giving the order will be held responsible as well as the one, who carried out the order. Korkut Eken committed a crime and was sentenced for it. If he only carried out orders his commanders have to be tried as well. If someone alleges that the criminal acts, for which Korkut Eken was convicted, were acts of carrying out orders, s/he shares the responsibility. One might think of the provision “aiding and sheltering members of criminal gangs”. The third element to look at it is the provision of praising a crime (Article 312/1 TPC) that requires a sentence of between six months and two years’ imprisonment. The generals chose their words carefully in their comments. They said: ‘I could not understand, why he was sentenced’ or ‘I cannot imagine that he misused his authority’, but taken together the words mean: ‘he should be praised for what he did’. Therefore, an investigation according to Article 312/1 TPC is necessary…

In mid-May the public prosecutor in Ankara decided that there was no need to prosecute anyone. Prosecutor Bekir Selçuk stated in the decision that the suspects were members of one of the greatest armies that evolved from the liberation war in Turkey, had fought against the terror organization PKK. They had only commented on the fight of Korkut Eken as a soldier against terror. It was impossible to draw a link between this duty and the acts that were the subject for the trial at İstanbul SSC No. 6. The decision made no mention of details from the Susurluk trial and did not name Doğan Güreş, Necati Özgen, Teoman Koman, Hasan Kundakçı, Adnan Doğu, Atilla Kurtaran and Cumhur Evcil.

The public prosecutor in Bağcılar (İstanbul) asked Prof. Dr. Kayıhan İçel, Ass. Prof. Dr. Adem Sözüer and Fatih Mahmutoğlu from the Law Faculty at İstanbul University for an expertise on the case. The jurists concluded that the generals needed to explain, which order they had given, when they said that everything had been done with their knowledge. The prosecutor decided to call Doğan Güreş, Atilla Kurtaran, Teoman Koman, Hasan Kundakçı, Adnan Doğru and Necati Özgen to testify.

At the beginning of June Korkut Eken approached İstanbul Criminal Court No. 7 asking for a retrial based on the statement of the general. His lawyer Armağan Güner stated that if the generals were heard as witnesses new evidence might show up. The statements of the generals had to be called new evidence according to Article 327/5 TCPC.

On 11 June İstanbul Criminal Court sent the file to İstanbul SSC arguing that this was the court to deal with the case. In return, İstanbul SSC stated that after changes in the law criminal courts had to deal with the offence. The public prosecutor in İstanbul objected and İstanbul Criminal Court No. 1 had to make a decision. On 2 September İstanbul Criminal Court No. 1 ruled that İstanbul Criminal Court No. 7 had to deal with the demand of a retrial.

İstanbul Criminal Court No. 7 instructed the judge Nilgün Uçar to take the testimony of some people including the generals Attila Kurtaran and Cumhur Evcil. She heard their testimony on 27 September. On 4 October Mehmet Ağar and Ünal Erkan testified. On 8 November Doğan Güreş came to testify.

Based on the opinion of Nilgün Uçar İstanbul Criminal Court No. 7 rejected the demand for retrial so that the sentence of 6 years’ imprisonment became legally binding.

Hüseyin Ayan, the lawyer of Haluk Kırcı appealed to Ödemiş (İzmir) Criminal Court asking for an early release. He argued that the 7 death penalties in connection with the Bahçelievler massacre had been commuted to life imprisonment, which meant 36 years. According to the Law on Execution of Sentences his client would have to have to spend 14 years and 4 months in prison. This included the sentence of 4 years’ imprisonment in the Susurluk trial. According to the Law on Conditional Release 10 years had to be reduced so that his client would have to serve 4 years and 4 months in prison. According to this reasoning Haluk Kırcı would be released in 2004.

On the testimony of Abdullah Argun Çetin, one of the defendants in the case related to the killing of Uğur Mumcu, the public prosecutor in Ankara started an investigation against Mahmut Yıldırım, known under the code name “Green”. The name of Mahmut Yıldırım had also been mentioned in the Susurluk case, but since he was not apprehended no legal steps could be taken against him.

Sedat Bucak and Mehmet Ağar

During the 3 November election the DYP fell below the 10% barrier and MP Sedat Bucak did not enter parliament and lost his immunity. Reportedly he went to the USA one day before the elections. He was to be tried at a criminal court in İstanbul. Mehmet Ağar, on the other hand, was elected as an independent candidate in Elazığ. His immunity was not lifted.

On 14 December Mehmet Agar () was elected the new chairman of the True Path Party (DYP). In a leaflet distributed at the congress Mehmet Agar maintained that 3 November was an important date, because after the accident in Susurluk on 3 November 1996 the legitimate right to defend the country had come under scrutiny. In 30 or 40 years history would show, who the ones were, fighting for unity of the country.

The trial against Eyüp Aşık, charged with Sedat Edip Bucak for having assisted the Mafia leader Alaattin Çakıcı at a time when he was wanted, had to be taken up again. In February 1999 İstanbul SSC had acquitted Eyüp Aşık, but the Court of Cassation had not proceeded on the appeal, since Eyüp Aşık had again been elected as deputy. Both defendants had to be tried in 2003.

The Yüksekova Gang

On 21 May the Panel of Chambers at the Court of Cassation rejected the demand by the chief prosecutor to overrule the decision by the 6th Chamber on the so-called “Yüksekova Gang”. The 6th Chamber had quashed the verdict by Diyarbakir SSC No. 4 on the grounds of insufficient investigation.

On 22 March Diyarbakır SSC 4 had passed its verdict in this case. The 13 defendants included a PKK confessor, high-ranking members of the military and even one mayor. Being charged with drugs and arms smuggling, robbery and other offences the court acquitted Major Hamdi Poyraz, Ali İhsan Zeydan, former mayor of Yüksekova (Hakkari), lieutenant Ali Kurtoğlu, village guard İsmet Ölmez, Hasan Öztunç, Mustafa Koca, Oğuz Baygüneş and Captain Nihat Yiğiter. PKK confessor Kahraman Bilgiç was sentenced to 30 years imprisonment, Major Mehmet Emin Yurdakul to 25 years and 2 months imprisonment, Kemal Ölmez, leader of village guards received a sentence of 13 years and 4 months imprisonment, Lieutenant Bülent Yetüt 7 years' and four months' and special team member Enver Çırak 3 years and 8 months' imprisonment. The retrial will be conducted at Hakkari Criminal Court.

The Panel of Chambers only objected to parts of the verdict of the 6^th Chamber, which concerned the defendants Kemal Ölmez and Enver Çırak. It confirmed the sentences for the defendants Mehmet Emin Yurdakul, Bülent Yetüt, Kahraman Bilgiç and Kemal Ölmez.