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RR RUEHWEB

DE RUEHAK #1407/01 2191544
ZNR UUUUU ZZH
R 061544Z AUG 08
FM AMEMBASSY ANKARA
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INFO RUEHVI/AMEMBASSY VIENNA 1704
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RUEHFR/AMEMBASSY PARIS 5451
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RUEHMD/AMEMBASSY MADRID 0448
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RUEHRL/AMEMBASSY BERLIN 4285
RUEHBS/USEU BRUSSELS

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.