Retreat on adultery accelerates TCK debates

As a result of an agreement reached between Foreign Minister Abdullah Gul and opposition Republican People’s Party (CHP) leader Deniz Baykal, the first 75 articles of the 348-article bill were approved in Parliament on Tuesday. The CHP’s decision not to obstruct the proceedings and the lack of arguments raised during the debates will result in the new TCK becoming law sooner than expected.

Attempts by the AKP to include adultery in the new TCK were opposed by women’s rights associations, the media and academics, as well as attracting a string of criticism from European Union officials. The initial insistence of Prime Minister Recep Tayyip Erdogan to criminalize adultery gradually lost its momentum and the AKP deputies were persuaded to drop the issue by Justice Minister Cemil Cicek. Cicek asked deputies not to insist on the matter in order not to risk the passage of the TCK through Parliament. The CHP’s threat to create obstacles during the proceedings also influenced Cicek.

Similar initiatives in the past, based upon Islamic principles, by the AKP had always resulted in the party retreating from public criticism. Attempts to allow graduates of imam-hatip highschools to enter any university department they wanted, to replace the Higher Education Board (YOK), to lift the ban on headscarves at universities, to allow the setting up of Koran courses throughout the year instead of only in the summer months, the law to provide funds to private schools governed by Islamic groups in the name of free education to 10,000 poor students and to increase the annual intake of new employees of the Religious Affairs Directorate to 15,000 from 1,600 all resulted in the AKP backing away. The AKP wanted to include adultery, classified as a crime in Islam, in a secular criminal code, but had to back away.

In debates yesterday, Parliament approved an article that asked for a life sentence for those convicted of "honor killings." In accordance with an agreement reached between the AKP and the CHP, the article on genocide was changed. The new version of the article defines genocide as the implementation of a plan to partially or entirely eradicate a group based on nationality, ethnicity, race or religion. Before the change, the article said genocide was defined as the implementation of a plan to partially or entirely eradicate a group based on nationality, ethnicity, race, religion or any other distinction. The statement "or any other disticnction" was removed in order to prevent the law becoming a basis for claims of the so-called Armenian genocide. Both the government and the opposition feared the basis of the Armenian claims, which is forced mass-migration, could be covered by the article.

The new TCK will be debated 10 hours a day, including the weekend. Due to the AKP retreat on the adultery issue, most expect the TCK discussions to end on Friday.

What does the new TCK bring
The new TCK includes many articles that will bring Turkish law closer to European norms: Judges are to be given considerable leeway in deciding cases on criminal negligence concerning traffic accidents. Among crimes included in the new TCK is the organ and tissue trade, experimenting on human beings, rape of a spouse, sexual harrasment in the workplace and discrimination based on gender, race, religion and ethnicity.

Certain amendments were made in laws against torture to make it easier to prosecute those found guilty of it. The recording of personal information was classified as a crime. The new TCK also includes certain articles that aim at the protection of the environment.

Other inclusions in the new TCK is that ignorance of a certain law will be accepted as a defense. While the 44th article of the new TCK says that ignorance of criminal law can absolve one of a crime, a sub-article notes that a person who, due to an unforeseen mistake, commits an offence of which he or she is unaware, he or she cannot be held responsible.

It the bill is approved in Parliament, those who commit a crime, while fully aware of its consequences, won’t be charged with dereliction of duty, but with premeditation. This way, contractors who build weak houses, those who fire in the air and those who drive recklessly may receive heavier sentences, including life imprisonment.

A contractor who ignores people occupying a house he knows will topple at the first earthquake will be put in prison for life if more than one person dies when the building collapses, and between 20 to 25 years imprisonment if a single person dies. Even if the building does not collapse, he may be liable to serve one year in prison. The same applies to those who cause death due to reckless driving or those handling explosives or guns.

Contractors and workers who build shanty homes will be liable to face sentences ranging from two to five years. The current TCK does not include any penalties for building shanty homes.

According to another article in the new TCK, a man who abandons his wife or a woman he has been living with for a long time after she becomes pregnant will serve between three months and three years in prison.

The new TCK includes many crimes that the current TCK doesn’t have or fails to address. One is the illicit organ trade. According to the new law, those who sell, buy and act as intermediaries in the trade will serve between two to five years in prison. Those who establish a criminal organization to conduct the trade will be liable to serve eight to 15 years in prison.

With the new TCK, crimes against humanity will be included in Turkish law for the first time. Those found guilty of genocide will serve life imprisonment. The same sentence will be asked for those involved in ethnic cleansing, killings or torture of a certain part of society. Human smuggling will also carry harsher penalties.

Those who cause the death of family members in traffic accidents or due to negligence will not be prosecuted, according to the new TCK.

Those who use children for making explicit visuals or statements will face five to 10 years imprisonment. Those who copy, print or sell such articles will be liable to face a prison term between two and five years.

The new TCK allows the extradition of Turkish nationals to face the International Criminal Court that deals with crimes such as genocide and mass murder.

Those who see a crime taking place, but don’t alert the police will be liable to face up to one year in prison. If the victim of the crime is a child or incapacitated individual, the penalty will be increased to 18 months. Additionally, those who fail to inform officials about the whereabouts of individuals for whom an arrest warrant has been issued will face between three months to two years imprisonment. The current TCK doesn’t define this as a crime.

The law insulting others is also changed. To call others "communist, fascist or reactionary" will be a crime in the new TCK and will carry a penalty between six months and three years imprisonment.

Most of the bill was prepared by Parliament’s Justice Commission, with the contribution of both ruling and opposition party deputies. While the new TCK is expected to be approved before Oct. 1, any government efforts to amend certain articles will cause its approval to be delayed, which will be detrimental for Turkey’s EU negotiation chances.