The 8th Judicial Package was published in the Official Gazette and came into force in March. According to experts, the provision brought to replace article 220/6 of the Turkish Penal Code, which was annulled by the Constitutional Court, does not solve existing problems and may have graver consequences

MELTEM AKYOL

The Proposed Law on Amendments to the Criminal Procedure Code, Some Other Law and the Statutory Decree 659, commonly referred to as the "8th Judicial Package," was passed by the Parliament on 2 March 2024 and came into effect following its publication in the Official Gazette.

Minister of Justice Yılmaz Tunç, announcing the coming into effect of the new judicial package on his social media account, said that the new legislation aimed to “increase the effectiveness and speed of judicial services, expand the freedom to seek remedy, ensure effectively combating crime and the effective protection of personal data.” According to Tunç, the 8th Judicial Package is a “part of Turkey’s planned reform strategy that is being implemented since 2009.”

The most controversial provision in the package concerns the crime of “committing crimes on behalf of a terrorist organization without being its member” that was governed by Article 220/6 of the Turkish Penal Code (TCK), which was annulled by the Constitutional Court for being unconstitutional. In the reasoning for its unanimous decision to cancel this provision in September 2023, the Constitutional Court stated that the provision was “not sufficiently clear and predictable to prevent arbitrary practices by public authorities and did not meet the criteria of legality.” This is why the 8th Judicial Package re-regulates this provision.

Professor Hasan Sınar, head of the Department of Criminal Law and Criminal Procedure Law at Altınbaş University’s Faculty of Law, summarized the changes brought in by the amendment as follows: “With the Law 7499, commonly referred to as the 8th Judicial Package, the durations for objections, appeals against decisions of courts of first degree and the judgments of appellate courts have been made uniform and now cover the two weeks following notification of the judgment. Under the previous legislation, this duration began with the reading out of the judgment, before the writing of the reasoning, which could lead to rights losses for parties which did not submit a petition to stall the duration. Secondly, the value of judicial fines has been increased from a minimum of TL 20 and a maximum of TL 100 per day to a minimum of TL 100 and a maximum of TL 500 per day. Amendments have also been made to ensure that decisions to defer the sentence can be issued without the acquiescence of the defendant and that this decision of the courts of first degree can be appealed. In the 8th Judicial Package, the article that used to define the crime of ‘committing crimes on behalf of an illegal organization despite not being its member’ was redefined as an independent form of crime punishable by the same sentence as ‘membership in a terrorist organization’.”

“The legislature also does not abide by Constitutional Court judgments”

So, what do these amendments mean and has the article, which the Constitutional Court annulled, been reformulated appropriately? Considering it in terms of Article 220/6 of the TCK, lawyer Figen Albuga Çalıkuşu said, “The amendment to article 220/6 of the Turkish Penal Code unfortunately did not bring about the necessary changes,” adding: “In its decision to annul, the Constitutional Court was very clear that the article did not meet the criteria of legality and requested any reformulation to identify the procedure, method and actions by which one can ‘commit a crime on behalf of an illegal organization without being its member.’ In its decision to annul, the Constitutional Court noted that this article was often used to criminalize the enjoyment of constitutional rights, such as the freedom of expression or the freedom of the press; and the European Court of Human Rights [ECtHR] had previously arrived at similar judgments. Especially in trials held after the coup attempt of 15 July 2016, this article came to be applied to opponents of the government. Both the Constitutional Court and the ECtHR have clearly stated the following: ‘Citizens of a country need to know which actions constitute a crime and this should be clearly described in the law.’ If there is an article governing ‘committing crimes on behalf of an illegal organization of which one is not a member,’ then it should be clear which actions constitute a crime committed on behalf of the organization. Otherwise, the provision will be arbitrary. Arbitrariness in turn leads to disproportionate punishment. Therefore, the article would comply with the principle of legality, and the principles of clarity and predictability. In its current form, this article of the law does not comply with the principle of legality.”

Çalıkuşu said that while the reason for the annulment of TCK 220/6 was clearly given, the article was taken verbatim in the 8th Judicial Package and added as paragraph 3 to Article 314 of the Penal Code which governs “terrorism crimes.” Çalıkuşu added: “While we are used to debating judges not implementing the Constitutional Court’s judgments on violations, as in the examples of Can Atalay, Selahattin Demirtaş and Osman Kavala, we have now seen the Parliament not abiding by Constitutional Court judgments. While the Constitutional Court has called on the Parliament to enact new legislation and do its duty as the legislature, the legislature has not fulfilled this duty.”

“Even more opposed to freedoms than the article annulled by the Constitutional Court”

According to Professor Sınar, the provision introduced with the 8th Judicial Package takes us further back than the annulled TCK 220/6. Sınar said: “This renders the Constitutional Court judgment meaningless in two ways: The first is that in violation of the principle of legality, it foresees punishment for the same action. The second is the disproportionate sentencing foreseen by the article, which sets the sentencing at the same level as the crime of ‘membership in a terrorist organization.’ The lack of clarity on which actions and expressions come under this article has not been dispelled. Under the previous law, the maximum sentencing possible for TCK 220/6 alone was between two and four years of imprisonment, while the current legislation allows for adding the provisions of article 314/3 and for maximum sentencing of five to 10 years of imprisonment for the action of ‘committing crimes on behalf of an armed organization.’ In this sense the lawmakers have produced a provision that is even more opposed to freedoms than that annulled by the Constitutional Court.”

How will the “committing crimes on behalf of an illegal organization” provision, which has once more come into force with the judicial package, affect trials of journalists? Let us look at some previous examples: In the Cumhuriyet newspaper trial, the remand of defendants was sustained for months based on this article of the law until the case was filed. Journalists Ahmet Altan and Nazlı Ilıcak and academic Mehmet Altan, who were imprisoned pending trial after the coup attempt of 15 July 2016, were accused of the same crime. The same article had also been used to arrest the journalists reporting on the information contained in former Minister of Energy and Natural Resources Berat Albayrak's e-mails which were leaked by RedHack.

Professor Sınar said, “This new legislation could mean a journalist practicing their profession could be sentenced to a long period of imprisonment such as five to 10 years, if TCK 314/3 is applied to their reporting on a peaceful demonstration.”

Çalıkuşu said: “This article of the penal law was very instrumental in suppressing the freedom of expression. The reasoning was even if someone was not a member of an organization, the views they expressed constituted crimes committed on behalf of the organization. Those who were uncomfortable with the opinions and criticisms being voiced used this article to silence non-conforming viewpoints and to punish thought.” Çalıkuşu continued: “Now that no changes have been made, they will continue in the same vein to silence those voices they see as belonging to dissidents and to easily apply pressure. The new legislation is not compliant with judgments of the Constitutional Court or the European Court of Human Rights. And unfortunately, we will see arbitrary sentencing and this article will be used as a useful means of punishment. For journalists, it will function in an open-ended manner, for punishing them as though they were illegal organization members, even if they are not, because they exercised their right to the freedom of the press and expression, the right to peaceful assembly and demonstration, disturbing the authority. They have been persistent. To see their persistence and the same unlawfulness carried out under the name of a ‘judicial package’ is quite scary. There will be no positive effect, we will observe the judiciary manufacture crimes out of the enjoyment of rights guaranteed by the Constitution. So, the law will continue to be used as a rod of oppression, nothing has changed.”

Stressing that the main opposition Republican People’s Party (CHP) should file a case with the Constitutional Court against the new amendment, Çalıkuşu went on as follows: “What will happen next? There will be individual applications filed with the Constitutional Court, there will be applications to the European Court of Human Rights and the process will continue. I hope that the main opposition CHP files a case against this article and that the Constitutional Court cancels the new legislation, naturally as there has been no amendment that is compliant with its decision to annul TCK 220/6. This will lead to a new process of annulment in line with the universal law, principles in the Constitution and judgments of the European Court of Human Rights.”

“Justice does not come in judicial packages”

While the debate on the 8th Judicial Package continues, Minister of Justice Tunç has announced that preparations for the 9th Judicial Package were already underway. Tunç said that many issues not dealt with in the 8th package due to the parliamentary agenda would be taken up in the 9th package and said, “We especially need some new legislation concerning the Criminal Procedure Code and the perception of impunity.”

When asked for the reason for the constant stream of judicial packages, Çalıkuşu said: “Normally under rule of the law, we do not hear about so many judicial packages. Justice does not come in judicial packages. In fact, there is no change in confidence in the judiciary or the rule of the law index in Turkey after any of the judicial packages came into effect. I do not think judicial packages mean much in a country where neither Constitutional Court, nor ECtHR judgments are not implemented. Furthermore, most recently the Court of Cassation failed to elect a president after 10 rounds of voting. Justice does not come in packages.”

Çalıkuşu concluded her remarks saying: “What is important is to issue decisions which comply with the law, which are adequate and in keeping with the universal law. But it seems that the 22-year-old government is so distant to such a practice, that it is trying to create a perception that it is serving the rule of the law, and an impartial and independent judiciary by constantly bringing up judicial packages. Unfortunately, it is not the law, nor legislation that is the beneficiary here but the militant and hostile judicial justice that sometimes acts as per instructions. As you can see, packages come one after another but after each package, there is neither progress in the rule of the law or confidence in the judiciary, nor an end to the pleas for justice in the country.”

Finally, Professor Sınar said: “The lawmakers undoubtedly can formulate legislation that meets the requirements of the age with one comprehensive amendment, but do not have the will for this. They instead resort to partial amendments through omnibus bills, and this leads to a lot of divergence in practice, which leads to a far from uniform system for implementors.”

What happened?

The Constitutional Court had ruled to annul two pieces of legislation. One of them was TCK 220/6. The Istanbul 22nd High Criminal Court and the Patnos High Criminal Court ruled to suspend the cases they were overseeing and brought TCK 220/6 before the Constitutional Court with a request for its annulment. At its session on 26 October 2023, the Constitutional Court unanimously ruled to annul this article. The reasoning for the judgment was that the “rules were not sufficiently clear and predictable to prevent public authorities from arbitrary practices and the article did not comply with the principle of legality.”

The crime of “establishing an organization for committing crime” is governed by Article 220 of the TCK. This article foresees an imprisonment sentence of between four to eight years for those establishing, administrating, or becoming members of an illegal organization. However, paragraph 6 of the article foresees sentencing for those “who are not members of an illegal organization but commit crimes on behalf of it.” This paragraph reads: “A person who commits crimes on behalf of an illegal organization without being its member is also to be sentenced for the crime of membership in that organization. The sentence for membership in an illegal organization may be lowered by half. Provisions of this paragraph apply only to armed organizations.”

The judgment to annul the article would have entered into force four months after its publication in the Official Gazette and during this time, the Parliament should have enacted an article that complied with the criteria the Constitutional Court had voiced in its reasoning.

Another provision annulled by the Constitutional Court concerned the judicial practice of "deferral of the announcement of sentences." According to this practice, which came into force in 2005, the judgment in crimes which may result in sentencing up to two years of imprisonment or a judicial fine, the announcement of the sentence would be deferred for five years based on certain conditions being met and that the case would be dismissed after the five-year period was up. Defendants who accepted the deferral of their sentence could not appeal the judgments of courts of first degree or regional courts of appeal. In its decision to annul the deferment of the sentence, the Constitutional Court had pointed out that in cases on allegations of maltreatment, the deferment of the sentence led to defendants not receiving an executable sentence and that no adequate and effective remedy was provided to the victim.

According to the amendments made to the deferment of the sentence in the 8th Judicial Package, the deferment of the sentence will only apply to defendants handed a jail term of two years or less and that objections and appeals against the judgment will be possible. The decision will now be implemented along with the judgment.