Bünyamin Tekin

The Turkish Parliament has enacted changes to a controversial piece of legislation that altered the wording of the law but preserved its essence, despite the country’s Constitutional Court declaring the original law unconstitutional due to its vague nature and potential for arbitrary application.

The Turkish Penal Code and other laws have been amended as published in the Official Gazette. Most notably, the amendments define a controversial law that punished individuals for committing crimes on behalf of an organization without being a member of that organization as an act punishable by a prison sentence of between two-and-a-half and six years, although the sentence may be reduced for certain offenses. In addition, the penalties for offenses against state security and the constitutional order are increased.

The law in question, Article 220 § 6 of the Turkish Penal Code, which punished individuals for committing crimes on behalf of an organization without being members of it, was annulled by Turkey’s Constitutional Court for its lack of clarity and predictability. The court’s decision was aimed at preventing the arbitrary application of the law, which had been criticized for broad interpretations that impacted fundamental rights, including the freedoms of expression, assembly and association.

Despite the top court’s directive for parliament to rectify the law, the recent amendment passed by the legislature has merely changed the wording without altering the essence of the provision, effectively maintaining the same framework that the Constitutional Court deemed unconstitutional.

“Any person who commits an offense on behalf of an organization, although he is not a member of that organization, shall also be sentenced for the offense of membership in that organization. The sentence to be imposed for membership in that organization may be decreased by half. This provision shall only be applied in respect of armed organizations,” Article 220 § 6 of the Turkish Penal Code previously said.

“A person who commits an offense on behalf of an organization without being a member of that organization shall also be sentenced to between two years and six months and six years’ imprisonment. Depending on the nature of the offense committed, the sentence may be reduced by up to half. This provision shall only be applied in respect of armed organizations,” the same article now reads.

This defiance by the legislative body highlights a continuing trend of disregarding the judiciary’s rulings, thus deepening the growing judicial crisis in Turkey.

Turkey has been experiencing a judicial crisis sparked by the imprisonment of an opposition lawmaker who was kept behind bars despite two decisions from the Constitutional Court in his favor.

The Supreme Court of Appeals, which upheld an 18-year sentence for lawmaker Can Atalay in a politically motivated trial, refused to act in line with the Constitutional Court’s decisions and filed criminal complaints against the members of the top court due to their ruling, a first in the judicial history of Turkey.

Atalay was stripped of his parliamentary status last month in defiance of successive rulings by the Constitutional Court.

All branches of government defy the top court

“Parliament is defying the Constitutional Court, just as the Supreme Court of Appeals did with the Atalay ruling,” Brussels-based lawyer Ali Yıldız told Turkish Minute.

“Before, it was the executive and judicial branches that defied the top court rulings. Now it is also the legislature. All branches of the government are now effectively defying the orders of the top court,” he added.

Yıldız says this disregard ignores the authority of the Constitutional Court granted in Article 153 of the Constitution and destroys the principle of checks and balances, which is fundamental to any democratic system.

The government of President Recep Tayyip Erdoğan has made declarations of intent for constitutional reforms to resolve the conflicts within the judiciary. However, critics and legal experts warn that such reforms could further undermine the independence of the judiciary.

Many say there is no longer a separation of powers in the country and that members of the judiciary are under the absolute control of the government and cannot make judgments based on law.

In a sign of the deteriorating rule of law in the country, Turkey was ranked 117th among 142 countries in the rule of law index published by the World Justice Project (WJP) in October.