Turkey’s new reform bill

The Turkish government has proposed a bill that will suspend all media offences committed before December 2011. But will the draft law actually improve press freedom, asks Funda Ustek.

Among the 178 countries listed in the Human Rights Watch index in 2012, Turkey came 148. Having fallen 10 places within a year, it is no surprise that freedom of media is an issue here. Although Prime Minister Recep Tayyip Erdogan, who himself was once imprisoned for reading a poem, says he is a supporter of free expression in all spheres of life, the numerous detentions of journalists and documentary makers, and the closure of TV and radio channels tell a rather different story. The picture is made even dimmer by the fact that most trials are closed to the media (and hence to the public), the legal procedure is elusive, detention periods are lengthy and the reasons for detention withheld. In such a climate, it is extremely difficult to decipher why a particular journalist has been arrested, how long he or she will be kept in prison before being taken to court or what the outcome of a trial will be.

Erdogan has stated that he does “not and cannot accept anyone being imprisoned for their opinions, expressions, writings”. When asked why there were so many imprisoned journalists in Turkey, he said they were being investigated for “stocking firearms, explosives, committing forgery, sexual harassment, terrorism, attempting to bring about a coup d’etat”. The Committee to Protect Journalists highlights that this was the most common allegation used to jail journalists globally in 2011. Convincing as it may seem, this is part of an old tale where journalists are charged for offences other than their work. But is there a way out?

With pressure both from the international community and Turkish citizens about the increasing number of journalists in prison, the long detention periods and the opaque legal process, the Turkish General Assembly has proposed a bill, called the Draft Law to Enhance Judicial Services and for the Postponement of Trials and Punishments related to Crimes Committed via the Media. Reporters without Borders states that this is an important step “at loosening Turkey’s legislative straightjacket, especially as regards the media”. But will the draft bill bring about real change?

The (potential) positives

The bill will require judges to show solid evidence for imprisonment both before and during the trial. This might result in shorter pre-trial detention periods and prevent unnecessary imprisonment between the time of arrest and announcement of the charges. Moreover, the bill proposes to repeal Article 6/5 of the Prevention of Terrorism Act (PTA), which currently makes it possible for judges and government attorneys to close down any newspaper or journal on the grounds that they promote terrorism. Hopefully, the draft bill will prevent random closures of newspapers or magazines, for undefined periods of time, especially of those publications that do not share the government’s views.

The vague aspects 

The draft bill aims to change the definition of Article 2 of the PTA, which states, “Those, even if not a member of any terrorist organisation, who commit crimes for a terrorist organisation, are deemed terrorists and charged in the same way as terrorists belonging to terrorist organisations.“ Under the new bill, people who assist terrorist organisations will be charged differently and their sentences will be up to two-thirds less than terrorists involved in organised crime. This bill is hopeful to the extent that it will be much more difficult to label journalists as terrorists if any of their published material is deemed to be promoting terrorist activity. Unfortunately, the bill does not make any attempt to rule out the possibility that journalists’ reports will be labelled as promoting terrorist activity if they are on issues the government would like to keep under wraps.

The draft bill also proposes an amendment to the protection of privacy, increasing the punishments from fines to two to five years’ imprisonment. The aim is to curb abuses by the police, which include phone-tapping and following individuals on social media. However, the bill could work against investigative journalists, who sometimes need to use secret cameras or tape recorders to document corruption. Given that “the right to privacy” cases are most often filed against the journalists and not the police, some sort of misdirection of the target group might be at place here. More importantly, the bill does not attempt to make any changes to the tapping of phones or recording or personal life and communication during the detention and trial periods.

Perhaps the most positive aspect of the bill is that it grants adjournment of punishments for media offences committed before 31 December 2011. If journalists do not commit similar offences during a three-year period, their cases will be dropped. Otherwise, they will resume. The justice ministry estimates the bill will affect 5,000 cases involving journalists. But obviously this means that journalists will need to start self-censoring if they do not want to be tried/sued/imprisoned (again). Moreover, the bill proposes that crimes which carry five-year prison sentences can be served with legal control, rather than actual imprisonment. No matter how optimistic this might sound, it actually means that those journalists who are tried on the grounds of terrorism (for which the penalty is a prison term of five to 10 years) will not benefit from this bill. Considering the fact that the reasons for detaining journalists are not usually made public, and the most critical charges are of terrorism, how this article will help journalists remains to be seen.

Last but not least, there are no proposals to change Article 100/3, which makes arbitrary detentions possible, and there is only a slight change to Article 101 to define more clearly the reason for detention. In the same line of thought, there are no amendments to the opacity of the legal process (Article 10), which will continue making it difficult to decipher who is being tried on what grounds.

Sinclair Webb from Human Rights Watch says, “The Turkish government has repeatedly contented itself with cosmetic gestures designed to temporarily defuse domestic or international criticism.” With many vague or relatively unchanging aspects, it would be only hopeful to conclude that this bill will transform media freedom in Turkey.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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