Saturday, November 21, 2009

The IHD Analis on Childreen Issues

Submitted by Tsiatsan on Saturday, November 21 2009
güncel Human Rights Association Diyarbakir Branch-the prosecution and heavy sentencing of children and youth under anti-terror legislation is one of the biggest human rights issues in Turkey. Proposed changes to the laws that have made this possible have recently been submitted to parliament. Attached is an evaluation of the proposals by the Diyarbakir branch of the Human Rights Association.

To Mr. Recep Tayyip Erdoğan, Prime Minister of the Republic of Turkey:

In 2006, changes were made to the Turkish Anti-Terror Law in a way that violated international agreements to which Turkey is a party. Following this, judicial lawlessness was increasingly applied to children especially between the ages of 15 and 18. Public opinion has come together in opposition to this, and every day different sounds have come from Parliament and been recorded in the press in response to public pressure, but no concrete steps have been taken. When it was understood that it would no longer be possible to ignore this public pressure, the issue of improving procedural provisions for children between the ages of 15 and 18 under the Anti-Terror Law – including the Law’s 9th and 13th articles – was brought to the agenda.

Although these modifications were anticipated by public opinion and despite the fact that it’s been repeatedly expressed that it wouldn’t bring a solution for the more than three thousand children who have been prosecuted or punished on the basis of violating the Anti-Terror Law, the bill forwarded to the Chairmanship of the Turkish Grand National Assembly on 10 November only deals with the Anti-Terror Law’s fifth (“Increase of Penalties”), ninth (“Determining Jurisdiction and Duties”) and thirteenth (“Prohibition on Postponing Jugements, Commuting and Remitting Sentences”) articles.

These changes are undoubtedly important. The changes that are expected to be made to the aforementioned articles of the Anti-Terror Law with the draft legislation are definitely important. But the changes in the bill aren’t going to silence the public opposition that’s formed in the last two years, and they don’t constitute a solution for the child victims of the Anti-Terror Law.

Changes to to articles 2, 5, 7/2, 9, 13 and 17 of the Anti-Terror Law, article 220/6 of the Turkish Penal Code, and article 33/C of the Law on Public Meetings and Marches have been prepared, announced and motioned for with a draft bill in parliament. Unless postive changes for children – whose numbers increase every day and constitute our future – are made with these modifications, they won’t represent improvements for them, and in terms of its criminal aspects, judicial lawlessness will continue.

If the bill passes through parliament in its current form:

1) If there are juvenille courts in the area where the crime was committed, children will be tried in them instead of adult criminal courts.
2) The provision of article 5 of the Anti-Terror Law which states that sentences for crimes committed under both Article 4 of the same law (“Crimes Committed with the Goal of Terror”) and relevant provisions of the Turkish Penal Code shall be increased by ½ will, for children, be lifted.
For example, if a judge wants to apply to children article 220/6 of the Turkish Penal Code on Committing a Crime in the name of an Organization despite not being a Member from the current minimum sentence (between 5 and 10 years), a minimum sentence of about 2 years 7 months 9 days will be given. (5 years = 60 months – 1/3 = 40 months – discretionary discount with application of article 62 of the Turkish Penal Code – 1/6 = 33 months 4 days)

3) The change to article 13 of the Anti-Terror Law that would be made by the draft bill would lift the prohibition on postponing penalties for children, and when the given sentence is less than three years and extenuating circumstances are recognized in accordance with article 51 of the Turkish Penal Code, it might be possible to postpone the sentence if the court wishes.
4) A child that is recognized to have thrown a stone or to have joined a protest, march, public funeral ceremony (for a fallen guerrilla) or other similar activities even without throwing a stone will be punished like a member of an organization under the crime of ‘committing a crime in the name of an organization without being a member of it’. At the same time, this child would also be punished in accordance with article 33/B or 33/C of law 2911 on Public Meetings and Marches. Because the minimum sentence for this crime begins from five years as in the crime of being an organization member, under the proposed changes it would be reduced to at least 2 years 7 months 9 days for children.
5) If, at the same time, a child facing court action is found by the court to have shouted slogans or said words in favor of an illegal organization or displayed colors or symbols that are said to represent one and article 7/2 of the Anti-Terror Law is also applied and a child is to be punished with a sentence between one and five years, a punishment beginning from the minimum sentence will be reduced to six months and six days if the judge wishes. (1 year-1/3 = 8 months – 1/6 = 6 months and six days.)

However, from an optimistic standpoint, in this situation it might be possible for judges to apply these changes in favor of children when making decisions about them by fixing the crimes at their minimum sentences, using judicial discretion to mitigate sentences, and if there are suitable conditions by postponing sentences. Still, in a situation where the judge’s punishment stretches beyond the crime’s minimum sentence, it’ll be possible to give children a sentence beyond 10 years.

What this also shows is that even if the legislation in question is passed in its current form, although children will be tried in juvenille courts instead of adult ones if they exist where the crime was committed, the Supreme Court will most optimistically give a sentence of up to 6 years in accordance with the known interpretation of its council of justices. In other words, in terms of the juvenille justice system, prison sentences for children aren’t exceptions or last resorts; they remain preferred and maintain their presence heavily. Unless the legal articles responsible for the lengthy sentences given to children are changed, it won’t be possible for judges to make different decisions.

In conclusion, our request: Unless changes are made to the proposals for improving the three items contained in the draft bill - articles 2, 5, 7/2, 9, 13 and 17 of the Anti-Terror Law, article 220/6 of the Turkish Penal Code, and article 33/C of the Law on Public Meetings and Marches – a legan solution to the problems that children, our future, are exposed to won’t be secured.

We call on the Council of Ministers and the Turkish Grand National Assembly to look over this piece of legislation once more. Otherwise, the procedural changes to be made will only result in children being treated as terror criminals in juvenille courts instead of terrorists in adult high criminal ones.