The Turkish legislation regarding terrorism and terrorist offences dates back to 1991, in response to the activities of separatist terrorist organisations in Turkey. Since then, Law 3713 on the Fight against Terrorism has since been subject to many amendments and partial annulments of the Constitutional Court. The latest major amendment has been realised in 2006, changing the definition of many terrorist and terrorism-related offences, as well as introducing new investigative measures regarding the prosecution of suspected terrorists.Although all kinds of national and international terrorist activities fall under the scope of the anti-terrorism legislation of Turkey, the main focus remains on separatist activities. For this reason, the rehabilitation and resocialization of former terrorists has also been a major focus of the Legislator.
Definition of terrorism, terrorist offences and offences committed with terrorist aims
The Turkish legal system differentiates two types of offences: Terrorist offences, which are limited to those specified under the Law 3713, and some offences against the territorial integrity of the state, and offences committed with terrorist aims. The former are considered as terrorist offences per se, while the latter can only be treated as such when committed within the framework of a terrorist organisation and/or in furtherance of its aims. According to this Law, the punishment for terrorist offences and offences committed with terrorist aims shall be aggravated, and special procedural and executional rules shall apply.
In addition to references to existing laws, defining and aggravating some of the pre-existing types of crimes as terrorist offences, the Law on Fight Against Terrorism also introduced new offences: The crimes of announcing and publication of declarations made by terrorist organisations, being a member, founding member or a leader of a terrorist organisation, and financing terrorist activities.
According to the Law, legal entities shall also be the subject of special preventive measures for their activities; however, since they are not to be held criminally responsible under Turkish law, no criminal fines or sentences can be applied to them.
Membership to a terrorist organisation and terrorist propaganda
According to the Turkish legal system, being a member to a criminal organisation is a standalone criminal offence that is punishable even though the particular criminal organisation has not begun to perpetrate any of the offences that build its goal. It must also be noted that this criminal offence is punishable separately, in addition to any offences committed by the particular member of the organisation.
Membership to a terrorist organisation has been criminalised under art. 7 of the Law on Fight Against Terrorism, and is to be punished as an aggravated form of membership to an armed criminal organisation, specified under art. 314 of the Turkish Criminal Code.
The same provision also criminalises the offence of terrorist propaganda, according to which, persons making propaganda, making publications including propaganda, covering their faces during public demonstrations that have been turned into propaganda of terrorist organisation, or shouting slogans as to imply membership to such organisations, shall be punished with imprisonment.
Financing of terrorism
The financing of terrorist activities has been criminalised as a separate offence under art. 8 of the Law on Fight Against Terrorism. Such activities are tracked according to a Law and a Regulation regarding suspicious transactions, applied to banks and financial institutions in order to track any criminal activity or money-laundering.
Special investigation methods and procedural measures to be applied to terrorist activities
The Law on Fight Against Terrorism introduced new and aggravated measures to be used during the criminal investigation and prosecution relating to terrorist and terrorism-related offences.
As a general fact, such offences are treated as a subcategory of organised crimes, which are already subject to special investigative methods, such as the interception of telecommunication, employment of undercover agents, technical surveillance methods, etc. In addition, all cases of organised criminality are tried before specialised provincial assize courts that find their basis of jurisdiction and competence under art. 250 of the Criminal Procedure Code. However, in case of terrorist offences, such measures are applied with a heightened severity.
Some of these measures include the following:
- Special investigation methods may be prolonged indefinitely
- The right to legal counsel may be delayed for twenty-four hours in custody
- The right to notify a person when taken after being apprehended is limited
- Limits apply to defence lawyers to be present during detention, the interrogation of the suspect and during trial
- The right of the defence lawyer to analyse and take copies from the case file is limited
Preventive use of investigation methods
In addition to the use of special investigation methods during the criminal investigation and prosecution, such measures may also be applied as preventive measures, before beginning of a criminal investigation, in order to clarify the inner structure of a criminal organisation. These measures differ from their prosecutorial counterparts in that they may be ordered by the chief of police, by the National Intelligence Agency etc., are only subject to judicial review, and the results obtained through such measures cannot be used as evidence in criminal proceedings.
In case of terrorist organisations, such measures as the interception of telecommunications can be applied more severely, as specified under the Law on the Duties and Authorities of the Police, and regulations regarding the use of such measures.
Prosecution
Terrorist and terrorism-related offences fall within the jurisdiction of specialised provincial assize courts that have been established after the abrogation of the former national security courts. These are a branch of the assize courts that have jurisdiction over offences against the security of the state, against the constitutional principles, against state secrets, offences committed within the framework of activities of a criminal organisation through the use of violence and coercion, or money-laundering offences and narcotics-related offences committed within the framework of a criminal organisation.
These courts have special competences regarding the period of investigation, gathering of evidence, and especially, regarding the maximum period of incarceration of suspected and accused persons. While these periods were determined as 2 years for ordinary assize courts (with a possibility of prolongation for 3 years), the same period is determined as 4 years for specialised courts (with a possibility of prolongation for 6 years).
Special measures regarding the period of execution
The execution of sentences in relation to terrorist and terrorism-related offences is also subject to special and aggravated provisions. According to these, persons found guilty of such offences must spend a longer portion of their original sentence in prison in order to be eligible for conditional release. Some of the most severe offenders, who have received a death penalty before the abrogation of that penalty in Turkey, or those who have received an aggravated life sentence, are deprived from a right to conditional release forever.
Protection of Witnesses and Security Forces
The Law on Fight Against Terrorism provides for detailed measures regarding the protection of witnesses, other persons who have become targets of terrorist organisation as well as members of the security forces or the judiciary who are in charge of fighting against terrorism. Such measures include a broad range of provisions, from constant surveillance to plastic surgery and change of identity.
In addition, the Law provides for gratuitous legal counsel for members of the security forces who are accused of any offence they allegedly committed during their fight against terrorism.
The Law also provides for continuous aid for close relatives of persons who died on duty, during fight against terrorism.
Amnesty, Resocialization and Active Remorse
During the fight against separatist terrorist organisations, the Turkish legislator resorted to several laws of amnesty and/or active remorse in order to regain the trust of persons who have become members of such organisations, without intimidating them with the threat of criminal liability. Because such laws were temporary as a rule, the legislator sought to find a more stabile solution to the particular problem.
As a result, the Law of Resocialization has entered into force in 2003, with the aim of obtaining vital information about the structure and activities of separatist terrorist organisations, and gaining the help of former terrorists to fight more effectively against terrorism. Terrorists willingly providing such information would either be free of criminal charges, or their sentence would substantially be diminished, according to the severity of their offences and the scope of their cooperation with the security forces.
The Law is still in force and is applied on those who were members but did not belong to the leading cadre of a terrorist organisation, provide relevant information about it and declare to have retreated.
State of emergency
Parts of Turkey were under a state of emergency regarding terrorist activities until 2002. The proclamation of the state of emergency was repealed in that year.
Prepared in January 2011
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