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CHAPTER 4 Harmonization Packages and Other Legislative Reforms Between February 2002 and July 2004, the GNAT adopted Nine “harmonization packages,” not counting other major legislative reforms such as the adoption of a new Civil Code, the Criminal Code, the Code of Criminal Procedure, and the Law on Associations. The reason they were commonly called “packages” was that each one of them involved changes in a number of laws. The purpose was to harmonize Turkish legislation with the constitutional amendments of 2001 and 2004, as well as with the acquis communautaire as part of Turkey’s efforts to become a full member of the EU. While some of these changes were simple acts of harmonization with constitutional amendments, others were quite important reforms with far-reaching consequences. Three of the packages were adopted during the DLP–NAP–MP coalition, and six during the JDP government. The adoption dates are as follows: First Package (Law No. 4744) 6 February 2002; Second Package (Law No. 4748) 26 March 2002; Third Package (Law No. 4771) 3 August 2002; Fourth Package (Law No. 4783) 2 January 2003; Fifth Package (Law No. 4793) 23 January 2003; Sixth Package (Law No. 4928) 15 July 2003; Seventh Package (Law No. 4963) 30 July 2003; Eighth Package (Law No. 5101) 3 March 2004; Ninth Package (Law No. 5218) 14 July 2004. The most important changes made by the harmonization packages will be dealt with below in a thematical rather than a chronological order.1 Freedom of Expression The Progress Reports by the European Commission have constantly underlined the limitations on the freedom of expression in Turkey. The First Harmonization Package introduced relatively minor amendments to the controversial Articles 159 and 312 of the old Turkish Turkey to?rdelt02:Whats minta 1 2/24/09 4:01 PM Page 73 Criminal Code. Article 159 on insulting the state and its institutions was amended to reduce the upper limit of punishment from six years to three years and fines were eliminated. Article 312 which punished inciting people to hostility and hatred on the basis of differences of social class, race, religion, sect, and region was also amended. With the amendment, such expressions would constitute a criminal offense only if they posed a danger to the public order. The new Criminal Code which entered into force on 1 April 2005 (Art. 216) further limited the scope of this offense by using the term “clear and present danger for public safety.” Article 159 was amended again by the Third Package adding a paragraph stating that “those written, oral, or visual expressions of thought made with the sole purpose of criticism and without the intention to insult or deride the institutions in question would not constitute a crime.” The Seventh Package further reduced the lower limit of the jail term from one year to six months. It has been convincingly argued that Article 159 and the corresponding Article 301 of the new Criminal Code still present major shortcomings since the words “Turkishness” and “Republic” are too broad and vague, and it is not easy to draw the line between insult and derision and legitimate criticism.2 Article 8 of the Anti-Terrorism Act was another major roadblock for the freedom of expression. The article had prohibited written, oral, or visual propaganda as well as meetings, demonstrations, and marches carried out with the purpose of destroying the indivisible integrity of the state with its territory and nation. The First Harmonization Package reduced the jail terms, and the Sixth Package totally abrogated the article, overiding the president’s veto. The reform has been praised as “a positive development on its own in terms of ensuring effective protection of free speech.”3 The Sixth Package also narrowed down the definition of terror, emphasizing the use of “force and violence” as a necessary element of a terrorist act. Thus, simple exertion of pressure, intimidation, or threat no longer constitutes a terrorist act. Second, Third and Fourth Packages brought about improvements in the field of freedom of the press. Thus, the confiscation of printed material can only be based on a court order and in urgent cases on a decision of the public prosecutor. In the latter case the public procecutor ’s decision must be submitted within 24 hours for the approval of a competent judge. If it is not approved within 48 hours it automa74 Democratization and the Politics of Constitution-Making in Turkey Turkey to?rdelt02:Whats minta 1 2/24/09 4:01 PM Page 74...

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