Cablegate: Turkey's Terrorism Laws: Unorthodox but Workable

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UNCLAS ANKARA 001407

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PTER PGOV TU
SUBJECT: TURKEY'S TERRORISM LAWS: UNORTHODOX BUT WORKABLE

1. (SBU) SUMMARY: During recent extended discussions with Turkish
Ministry of Justice (MOJ) officials, we reviewed Turkey's legal
framework for prosecuting terrorism activities. In response to our
concern that Turkey's current terrorism law too narrowly focuses on
domestic terrorism and does not cover terrorist attacks against
non-Turkish targets, MOJ officials contend they have adequate
authorities now to prosecute a wide range of terrorism acts,
including attacks on non-Turkish targets, financing and accessory
liability, and that no legislative changes are needed. MOJ official
say they can do this by using other Turkish laws, international
conventions, and U.N. Security Council resolutions. The MOJ
provides regular briefings on these issues to Turkey's eight High
Penalty Court prosecutors to ensure that they are aware of how to
prosecute terrorist crimes. END SUMMARY.

2. (SBU) In July the U.S. Department of Justice's (DOJ) Resident
Legal Advisor and officials in the Ministry of Justice's (MOJ)
General Directorate of International Law and Foreign Affairs
discussed Turkey's ability to address various terrorism acts which
might not be specifically defined as terrorism under existing
Turkish legislation. We offered several hypothetical situations
and discussed how they could be prosecuted. (NOTE: Turkey was one
of the few states to define terrorism prior to September 11, 2001.
Its main legal provisions are set forth in its 1991 anti-terrorism
law, and a 2005 provision in the Turkish Criminal Code. The main
elements prohibit acts by organizations which aim to change "the
constitution, its political, legal, social, secular and economic
system; damage the indivisible unity of the State with its territory
and nation; or endanger the existence of the Turkish State and
Republic" - that is, an almost exclusively internal focus. END
NOTE)

Anti-terrorism law not the sole resource
----------------------------------------
.
3. (SBU) MOJ officials said the anti-terrorism law is not the sole
resource for prosecuting terrorist crimes. The over-arching legal
tool is Article 90 of the Turkish constitution which mandates that
all international treaties and conventions ratified by Turkey have
the force of domestic law and take precedence over any conflicting
domestic law. The MOJ relies on this core legal principle when
determining the existence of a terrorism crime under Turkish law.
Turkey is a signatory to all 12 international terrorism conventions.

4. (SBU) In addition to international instruments, the MOJ uses
various codes, laws, regulations and circulars promulgated by the
government to determine which laws apply and how charges can be
filed for terrorist activities. While numerous specific terrorist
actions taken from international conventions have been specifically
criminalized under the Turkish penal code, many have not.

5. (SBU) The fact that the various mandates found in the 12
conventions and many European treaties are not set forth
specifically in Turkish law creates the possibility of inconsistent
application in prosecution. However, MOJ prosecutors insist that it
does not/not mean that terrorist activity not found within the scope
of the anti-terror law cannot be prosecuted. We asked MOJ official
to explain how different types of terrorist acts would be
prosecuted.

Actors inside Turkey
committing terrorism acts outside Turkey
----------------------------------------
.
6. (SBU) Terrorists plotting in Turkey to commit acts outside of
Turkey are covered by Article 13 of the Turkish Penal Code, which
extends extraterritoriality in "International Offenses." This
article extends Turkish jurisdiction over offenses committed outside
of Turkey whether committed by a Turkish citizen or non-Turkish
citizen.

7. (SBU) In this scenario, our MOJ interlocutors would explore
whether they could define the activity as terrorism under their
domestic anti-terrorism law or any of the 12 terrorism-related
treaties. If yes, Turkey could assert jurisdiction over the crime.
If no, the prosecutor would look to see if the actors belong to, or
are acting on behalf of a group that is listed as a terrorist
organization in any international convention or addendum within
United Nations Security Council Resolutions. If the actor is not a
member of the organization, but is acting on behalf of the
organization, he is liable for his actions pursuant to Article 2 (1)
of Turkey's anti-terror law.

Membership in an organization
-----------------------------
.
8. (SBU) Although the Turkish anti-terror law specifies that an
organization be the terrorist actor, individuals can also be
prosecuted. If an individual commits a terrorist act while acting
on his/her own, Article 2, paragraph 2 of the Prevention of
Terrorism Law applies. Under this article, an individual who
commits a terrorist act on behalf of a terrorist group -- even
though he is not a member -- will be sentenced as if he/she were a
member. The Turkish penal code specifically incorporates a number
of crimes set forth in UN conventions as terrorist acts (such as
kidnapping, torture, human smuggling, etc.) and states that "anyone"
who commits such acts shall have committed a terrorist act.
However, an individual who is not associated with a terrorist
organization, but commits violent crimes as a self-designated
terrorist (such as killing, maiming, torturing, kidnapping, etc.)
could be charged under the Turkish criminal code applicable to such
acts -- and not as a terrorist -- to simplify the prosecution.

Accessory liability
-------------------
.
9. (SBU) An actor in Turkey who provides assistance to a terrorist
organization or actor outside of Turkey (e.g. by sending a map),
knowing that he or she is assisting by providing the necessary
direction for a terrorist attack, can be prosecuted in Turkey.
Turkish Penal Code Article 8 (1) stipulates that Turkish law shall
apply to all criminal offenses committed in Turkey and that "[w]here
a criminal act is partially, or fully, committed in Turkey...the act
shall be presumed to have been committed in Turkey."

Terrorist Financing
-------------------

10. (SBU) We suggested two terrorism financing scenarios. First, a
Turkish national outside of Turkey who aids terrorist organizations
in order to fund terrorist operations aimed at non-Turkish interests
outside of Turkey. Such an individual can be prosecuted. The MOJ
would look to Article 13 of the Turkish penal code giving Turkey
jurisdiction over Turkish nationals who commit crimes outside of
Turkey. The act of terrorism financing is set forth in the
International Convention for the Suppression of the Financing of
Terrorism, Article 2, 5 (a), (b) and, (c) and under Turkey's
constitution, becomes Turkish national law.

11. (SBU) In our second example, Turkish nationals in Turkey pay a
terrorist organization for housing a suicide bomber's family.
Turkish terrorist finance law does not directly address this crime,
but the Convention for the Suppression of the Financing of Terrorism
would apply. Prosecutors would also examine the terrorist
organization to which assistance was given. If it is included on UN
lists, Turkish nationals could be prosecuted directly under the
Turkish Counter-terrorism law.

12. (SBU) Finally, we asked if Turkey could extradite those who
aided in terrorist financing if the financing in question was not a
crime under Turkey's terrorism laws. Based upon the Convention for
the Suppression of Terrorism and its application as Turkish domestic
law, the acts should be regarded as terrorist financing crimes and,
therefore, extraditable offences as set forth in the same
convention. MOJ officials stated emphatically that they make every
effort to render assistance to a requesting country in terrorism
extradition requests. However, Article 38 of the Turkish
Constitution proscribes the extradition of a Turkish citizen. Also
those who commit crimes in Turkey must complete whatever sentence
they face in Turkey before being extradited to another state.

Practical Implementation of Conventions, Agreements
--------------------------------------------- ------
.
13. (SBU) Turkey's Eight High Penalty Court Prosecutors are
responsible for bringing terrorism charges under Turkish law and the
international conventions. Although these prosecutors are
independent and responsible for developing their own cases, they are
required to seek guidance from the MOJ's General Directorate for
International Law and Foreign Affairs for all matters related to
international law. According to MOJ officials, this directorate
provides regular and specific training, and seminars and meetings on
the various conventions and anti-terrorist legislation. The MOJ
said it also provides circulars setting forth practical instructions
on how to implement the instruments, much like the Department of
Justice's "USA Bulletins."

14. (SBU) MOJ officials are adamant that if a situation arises,
they will be able to invoke the applicable international convention
to prosecute terrorists. They argued that, while amendments to the
terrorism law might be preferable, the process of changing a piece
of domestic legislation is complex, and the result might not be the
desired outcome. When laws are amended in Turkey, it invariably
leads to problems in Parliament because of the nature of the
amendment process and the tendency of opposition parties to turn
this process to their political advantage. "Of course we will amend
our law if it is shown to be deficient, but to date it is not," one
high-level MOJ official told us. "We can use the 12 conventions to
cover any and all (eventualities)." In addition, the limits of the
revised terrorism law have not been tested in any specific case, so
it is harder to convince legislators that a change must be made.

Comment
-------
.
15. (SBU) The bottom line is that Turkish prosecutors believe they
can use not only the terrorism law, but also a host of other
domestic and international laws and conventions to prosecute any
type of terrorism case. Rather than focusing our energies on
seeking broad amendments to the law and forcing a parliamentary
debate on the definition of terrorism, we believe that a more
effective course would be to work with the MOJ to propose a series
of "technical" amendments to improve the efficiency of the law's
implementation. The Ankara RLA Office has already begun these
discussions with the MOJ.

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