Yildirim believes there was no need for such a law in the first place due to current legislation in Turkey and that there is genuine ground to be concerned if it is passed by Parliament to replace that very legislation which is already subject to criticism and debate.
The lawyer and human rights activist evaluated the draft bill to Bianet with emphasis on the balance between freedom and security, in light of whether a requirement for such a law existed.
Excessive authority
"It is of course the duty of the state, which already has the authority to use legitimate violence, to ensure the security of citizens in the struggle against terror" Yilmaz said.
He added, "But if serious legal limitations are not imposed on this immense power, then this authority could itself turn into a monster that creates violations. At this point, officials should be able to say 'how can I establish the freedom of the citizens and protect them' instead of saying 'I should have even more authority, I should act freely'".
Yilmaz pointed out that "the extrajudicial practices and serious violations in Turkey and specifically in the Southeast committed under the auspices of the struggle against terrorism" had even been identified by the European Court of Human Rights (ECHR) and said "the violations of all fundamental freedoms including the right to life are of the nature that confirms concerns that the excessive authority granted under the TMY draft will be misused."
"It is our concern that in combating terrorism there is the possibility that people who have nothing to do with the incidents will be greatly harmed" he said.
Non-violent activities in scope of terrorism
"While terror organisations have illegal goals and they use various serious unjust and outlawed means such as violence and the violation of the right to life for their goals, they also could have activities that do not contain violence based on demands for legitimate rights that are not being met or have not been met by the legal system" he continued.
"According to the law, a civilian citizen expressing the same demand or acts the same way will be accepted as having committed a terror offence and being a terrorist individual on grounds that the act they commit is 'in line with the targets of the organisation'.
"You yourself can decide how many measures, how many difficulties and how many grievances, including being placed under arrest, they will have to go through until an individual can prove he or she is not a terrorist.
Because of this, it would be fairer, on part of protecting freedoms, if the offence is included in the law clearly for acts of illegal violence and using violence."
"The European Council regards 'violence' as a provision for an act of terror to be committed. In its verdicts, the ECHR observes activities that 'neither incite violence, nor armed resistance, nor uprising, nor enmity' within the scope of freedom of opinion and expression and regards anything adverse to these as a 'violation' of rights.
The ECHR also requires for the penalty and punishment type to be proportional to the offence, where it meets the target sought, as well as the fundamental limits that need to exist in a democratic society.
"Our current draft includes acts other than violence in the scope of offence, ignores the fundamental criteria in the ECHR decision, brings heavy prison terms and fines to the press and contains serious violations".
Glorifying offenders
Yilmaz also noted that "articles related to publicly inciting an offence within the framework of a terror organisation, to glorify an offence or offences that have been committed, publications that contain content in the form of propaganda for a terrorist organisation, hanging placards, opening flags, shouting slogans etc. will very suddenly eliminate all the advantages that have been achieved in freedoms of opinion and expression and take us back to the same point as we were before the EU period."
"For instance, why was article 8 of the TMY related to 'propaganda against the indivisible sovereignty' abolished in 2003? " he asked.
"With this and similar articles being abolished, the day where every individual could freely express their opinions, where they could speak what they could not, came to being. Of course to invite for violence, to commit violence should be a crime but even if we do not like an opinion, what harm would it do if it is expressed by someone and does not incite violence? How can a competent state be harmed just with speech?"
The need for law
Voicing concern over a violence for violence reasoning, Yilmaz said the following:
"What will harsh measures particularly in relation to the recent activities of violence, solve? For example which act of violence in Diyarbakir province was prevented with the measures put into force? Abroad, for instance in Britain where we take the TMY as example, even though it enforced heavy measures against foreigners and not its own citizens for a year, did this prevent bombing activities in their own country? Is the law still in force? No.
"In our country where even with the TMY law not being approved, the use of excessive force that led to 11 citizens being killed, hundreds of wounded, hundreds of detained and a peak point being reached in mistreatment and torture claims makes it evident what the results of extreme authority and using violence to repress leads to.
"If even more serious things were done, which of those doing them were taken from duty or arrested? In any event, the Turkish Penal Code (TCK) law on the execution of criminal and security measures and the criminal procedures laws already have serious articles against terror crimes and criminals.
"On top of these, our Anti-Terror law that discriminately makes the conditions even more serious is already in force. In the past years, illegal organisations in Turkey involved in very effective armed struggle have been put on trial under these laws and have been forced into a period of being purged. The reality that the state is the 'strongest structure' also imposes upon the state the duty of 'combating terror' without limiting fundamental rights and freedoms".
Is current legislation enough ?
Yilmaz explains that the current legislation is already rather tough on organisational offences in a rather discriminatory way and lists some of the areas that are now being addressed by the new TMY:
"* Where members of an illegal organisation commit serious organisational offences such as killing someone etc. they can already be sentenced to heavier terms of life time imprisonment (TCK 302, 309)
* Organisation founders and leaders who have not been involved in serious acts can be sentenced from 10 to 15 years imprisonment.
* Organisation members can be sentenced to 5 years heavy prison terms (TCK 314)
Other than these, the current TMY, which is being regarded as insufficient, already increases the sentences here by half, in a discriminatory way. (TMY 5)
* Those abetting and assisting an organisation can, according to the TCK, be punished more severely than before.
* The Criminal Procedures Law (CMK) allows for 72 hours detention for organisational offences while normally the detention period is 24 hours. (CMK 91)
* Those who commit organisational crimes spend more time serving the sentence they have received than ordinary criminals. Those who receive heavy life time imprisonment spend 36 years in prison instead of 30, those who receive life time imprisonment serve 30 years instead of 24 and in other conditions they have to serve 3/4 of their jail term instead of 3/5th. (CGTIK 107- E-4)
* Those who commit organisation crimes serve their prison terms in high security prisons confined to 1-3 person cells, with limited prisoner rights and subjected to a heavy execution of their punishments. (CGTIK articles)
* Heavy terms are already imposed on those involved in illegal meetings and demonstration rallies, carrying the emblem or signs of illegal organisations and groups, attending meetings and demonstrations by hiding their faces partially or totally, carrying posters, placards, pictures, signs, instruments and material deemed illegal by the law or shouting slogans to this effect. (Law number 2911 Article 23)"
Arbitrary increases in penalties
The rights activist adds, "under the justification of combating terrorism, to allow for a breach of the maximum term described under the Turkish Penal Code allows for the legal arbitrary increase of penalties while it is not in the law itself. Arbitrary punishment will deepen the inequality in the current law, allowing for practices contravening to the law becoming a convention."
NGOs and peaceful activities
Yilmaz also warns that "With this draft, the peaceful activities and legitimate criticism of non government organisations and civilian initiatives can be silenced under the excuse of activities of armed groups and the very right for civil willpower to exist, may be blocked."
Authority to shoot
According to Yilmaz, the authority granted to security forces to directly and without hesitation open fire on their target where an attempt has been made to use arms in violation of a "surrender" order is against the Constitutional Court 06.01.1999 dated E: 1996/68, K: 1999/1.
"In this decision the same provision under 3713 TMY Annex Article: 2 was overruled. The decision to abolish this article that was re-worded was explained as '...it may be possible in some incidents to make ineffective the offenders through methods that less risk life and according to the nature of incident, not to use such methods and directly and without hesitation use fire arms can lead to the right to life being damaged. Because of these reasons, the Constitutional Court had found the relevant provision in violation of article 17 of the Constitution.'
To ignore this decision is an excessive authority granted to security forces and will open the way for extrajudicial killings to escalate and continue" he said.
Discrimination for officials and parents
Yilmaz noted that the new law would allow security force officials who have committed crimes in the combat against terrorism to have better protection from prosecution while in holding parents responsible for the behaviour of their children, the principle of "individuality of crime" was being violated.
Amendments in the law propose prison terms up to five years for parents whose children have been allowed to participate in activities against the state, believed to have been stimulated by the recent wave of violence in the Southeast where some sources said 80 percent of the demonstrators throwing stones and fire bombs against security forces were minors.
Defense rights limited
Yilmaz also said the new law limited defence rights. He explained that there was an attempt to prevent suspects placed under custody from informing any relative of this detention and warned this would be "preparing the conditions for practices such as disappearances under detention and torture which have been on the country's agenda for so many years."
He said the law also excessively limited the defence rights between defendant/suspect and his or her attorney, disallowing any contact with a lawyer for the first 24 hours of detention, then preventing relatives from learning of the detention, asking a lawyer to defend a suspect without even seeing the case file and allowing security personnel to be present during attorney and client meetings. "The law" he warned, "will bring provisions which will partially or totally abolish defendant rights and the right to defence".
Yilmaz explained that under the section on protecting rights and freedoms, the draft referred to "monitoring by the judge" but said experiences from current procedures showed this would not be very effective and that the court would only receive very generalised information and not be able to confirm the authenticity of the intelligence it received.
Violations
According to Yilmaz, the new law allows authorities from the head of security forces to governor level to impose security measures without needing a warrant from the prosecutor's office and in practice this would amount to those officials restricting the rights of individuals on grounds that 'they might commit an offence in the future' or 'their existence might constitute a threat for the country in the future.'
He explained that the restrictions could include entry and exit bans to certain areas within determined time and date limits, limitations on an individuals decision to allow his residence or work place to be used by someone, limitations on travel, confiscation of ID cards including passports, collecting photograph, finger print or DNA samples to identify an individual where he or she are facing criminal proceedings, banning the use of certain materials that might be handy for offences, banning services or the use of some facilities for an individual, limiting a profession or art, limiting regional communication so far as it is proportional and limited to where an offence can be committed, banning an individual from being at a certain location or area provided this is within a time limit, regional or local; requiring individuals to inform local authorities of their plans and movements.
Yilmaz said the TMY draft amounted to a number of violations that would open the way for arbitrary violation of rights and freedoms. He said the principles of "respect for human rights", "right to innocence", "right to fair trial", "right for individual freedom and security", "right to request respect to private life", "right to defence attorney", "right to defence", "property right", "right to travel"' and various other rights included in the constitution itself would be violated. (TK/II/YE)
