Families of the Children Who Found Themselves on the Wrong Side of the Law – Human Roghts Association Diyarbakir Branch- Diyarbakir Bar- Diyarbakir Medical Association- Mazlum Der Diyarbakir Branch
I. WHAT WAS THE INITIATIVE ESTABLISHED FOR?
Following the incidents in Diyarbakir on 28 March 2006, approximately 400 children according to the official figures, and 700 children according to unofficial figures, were detained and subjected to inhuman treatment at detention centres. A large number of these children were arrested and were indicted for up to nearly a quarter of a century long imprisonment sentences. In the meantime the TMK [Turkish Civil Code ] was amended and the local Courts referred the sentences given to the children to the Supreme Court of Appeals Sentences General Council, where the sentences were confirmed and implemented, thus a child who threw stones and made the victory sign started serving 25 years. The sentencing of children for 25 years for stoning the police caused an outrage as it seemed to be unjust. This offended the sense of justice of the children’s families, lawyers defending the children, human rights organisations, children focused NGO’s, Law Societies, intellectuals, columnists, and created a general outrage. All national papers started publishing articles and columns, meetings were held, primarily in Diyarbakir but also in Ankara, Istanbul, Izmir, Adana and other cities, where press announcements were made, resulting in an immediate public outcry. An initiative started in Diyarbakir named ‘Justice for Children Initiative’, setting up a website called www.cocuklaraadalet.com, 1050 intellectuals signed the petition and more and more people are signing the petition daily
II- WHAT HAS THE INITIATIVE DONE?
Initially the ‘Justice for Children Initiative’ was established by the families of the children and subsequently it grew with the support of NGOs. At present, there are more than 20 organisations participating and providing active support within the Initiative. The initiative established a web site, launched a petition, visited numerous NGOs in Diyarbakir and sent information via email to a large number of people and organisations. The Initiative called for active participation at the court hearings, ensured the attendance of activists of children’s’ rights from Istanbul and Ankara, supported and showed solidarity with the families, and made press announcements in front of Diyarbakir Judiciary and Diyarbakir E type prison. The initiative visited DTPs [Democratic Society Party ] Diyarbakir members of Parliament and submitted a brief to them. DTP’s Sirnak Member of Parliament, Sevahir Bayindir, submitted a bill to the Turkish Grand National Assembly’s Speaker, proposing that children be excluded from the Prevention of Terrorism Act. In a response to a parliamentary question by DTP’s Diyarbakir MP Selahattin Demirtas, the Minister of Justice Sahin stated that in 2006 and 2007 a total of 4,784 cases were heard under the Prevention of Terrorism Act including 11,720 people, 737 of whom were children. Sahin also stated that within the same period, 2,469 cases, 422 of which were cases of children, were opened in accordance with Article 220 of the TCK [Turkish Penal Code] for forming an illegal organisation, being a member of an organisation, and carrying out propaganda on behalf of an illegal organisation. All together, 17,510 people were prosecuted. In his response Sahin stated that in the years 2006-2007, 2,239 cases were opened in accordance with Article 314 of the TCK, which regulates the offences concerning the forming of armed organisations and running them, and that a total of 6,582 people, including 413 children, were prosecuted.
TMK 737 Children
TCK 220 422 children
TCK 314 413 children were prosecuted. Although a research had not been carried out yet, it is estimated that the number of children who fell into dispute with the law was around 500. It has been estimated that the number of children detained in connection with the 15 February 2009 incidents were 14 in Diyarbakir, 15 in Mardin and around 50 in total.
III- DETERMINING PROBLEMS OF PROSECUTING CHILDREN
a) The Legal process regarding children in dispute with the law
It is a breach of the Constitution, the Protection of Children Act, the UN Convention of Children’s Rights and the European Convention of Human rights to subject the children to the regime of the Prevention of Terrorism Act. Prosecuting the children under the Prevention Of Terrorism Act shows disregard for the national laws regulating the prosecution of children, as well as supra-national documents stipulating that, in incidents where children are involved, the unit that should deal with the children has to be part of the Children’s Branch Directorate, the place of detention should be the children’s branch directorate, the prosecutor that would take the children’s’ statements should be a children’s prosecutor, the social services experts and their lawyers should be present when statements are obtained, arrest should be the last and not the first resort and that the child’s interests should be observed.
b) The sentences demanded by the prosecution
The sentences demanded for children involved in the incidents:
According to Article 220 of the TPC, establishing an organisation in order to commit an offence and being a member of such an organisation, requires 2 years and 6 months imprisonment, whereas Article 314/2 of the TPC requires 5-10 years imprisonment and Article 5 of the Prevention of Terrorism Act No 3713 stipulates that these sentences should be increased by ½. Article 7/2 of the Prevention of Terrorism Act No 3713 requires 1-5 years imprisonment, whereas Article 33/c of the Act No 2911 also requires imprisonment between 5-8 years. Where it is claimed that public property was damaged, under Article 152/1-a of the TPC , the prosecution demands a further doubling of the sentences.
Article 37/b of the UN Convention of Children’s Rights stipulates: “no child should be deprived of his freedom illegally and arbitrarily. The detention, confinement or imprisonment of a child must be absolutely the last resort and must be of the least duration possible.” Article 4/1 of the Protection of Children Act, titled “Fundamental Principles”, which is in line with the UN Convention, stipulates that the deprivation of freedom of children must be exercised as the absolutely last resort. The aim of these regulations is to ensure the non-imprisonment of children in criminal courts proceedings.
Moreover, Article 19 of the Constitution ensures that “the freedom and the security of the individual” of every person is protected and Article 5 of the European Convention of Human Rights, titled “Right to Freedom and security”, also guarantees that every person is entitled to freedom and security.
In the light of the above it is a clear breach of Article 19 of the Constitution, of the UN Convention of Children’s Rights, the Protection of Children Act and Article 5 of the European Convention of Human Rights, to use detention as the first measure as opposed to it being the last measure.
As can be gathered from “The Incident Report” in the case file regarding the incidents in which the children are being prosecuted, that the Chief Public Prosecutor in charge, who ordered the children’s arrest, was authorised to do so by Article 250 of the TPC. This in itself is a breach of the national as well as international laws and conventions.
c) The rulings applied to children are in breach of The Protection of Children Act
Cases of the children, who are in disagreement with the law, should be heard by the Criminal Court under Article 9 of the TMK, which stipulates that “as indicated in paragraph one of Article 250 and in accordance with Criminal Courts Act No: 5271 dated 04.12.2004, the offences within the ambit of this Law will be heard before Criminal Courts.” According to the practice “Cases of children above the age of fifteen who are prosecuted for these offences are to be heard in these Courts” , there is a breach of the Articles 37, 10, 17, 36 and 90 of the Constitution to try children in Courts authorised by Article 250 of the Criminal Courts Act.
In addition, Article 13 of the TCC states that: “In accordance with Article 231 of the Criminal Courts Act, in relation to the offences defined by this Act, the announcement of the sentences cannot be postponed and prison sentences cannot be converted to alternative sentences, or be deferred. These rules, however, cannot be applied to children under the full age of fifteen.” Again, the ineligibility of postponing the announcement of the sentence, the children’s inability to benefit from conversion to alternative sentences or deferment is in breach of Articles 10, 36 and 90 of the Constitution. The reason being:
d) The interpretation of Article 90 of the Constitution:
The final paragraph of Article 90 of the Constitution reads as follows: “Appropriately enacted International Treaties are valid as Acts of Parliament. No application can be made to the Constitutional Court to claim that they are in discord with the Constitution. (Additional Sentence : 7/5/2004-5170/7 md.) If a law, which is a subject of a properly implemented international treaty regarding fundamental rights and freedoms is in dispute, the rulings of the international treaty will prevail.
This application, which is regulated by Article 90 of the Constitution, stipulates that International Treaties are valid as Acts of Parliament and, in essence, this provision gives a direct effect to International Conventions and directs that appropriately enacted International Documents will have to be applied by judges.
In addition, Article 90 of the Constitution stipulates that: “If the provisions of laws regarding matters which are also the subject of Properly Enacted International Treaties regarding fundamental rights and freedoms are inconsistent, the provisions of the International Treaties will prevail.” The effect of this is to establish that the provisions of the International Treaty will be a DETERMINING factor when solving the disagreement. The regulation defined in the final paragraph of Article 90 of the Constitution assumes that an International Treaty is more reliable than the National Act.
Within this framework, the Constitutional regulation accepted in the above referred Article that where the National Act and the International Treaty are in dispute, the International Treaty is to prevail.
When assessed in its entirety, the final paragraph of Article 90 of the Constitution is clear that “Provided that the TGNA deems appropriate to endorse an International Treaty with an enactment, International documents, be it an agreement, Convention, Pact, Protocol etc. have priority in determining matters regarding legislative issues.
Turkey has signed the UN Convention of Children’s Rights, which subsequently became “The Human Rights Act of the World’s Children”, on 14 September 1990 and endorsed it with the Act N. 4058 dated 9.12.1994.
Consequently, within the context of Article 90 of the Constitution, the UN Convention of Children’s Rights is an appropriately endorsed and enacted International Convention. Therefore it has the power of “THE RULING OF THE LAW” and should therefore be applied before any other Act of Parliament.
In this context, Article 1 of the UN Convention of Children’s Rights rules that anyone below the age of 18 is deemed to be a child.
Also, Article 2 of the Convention bans discrimination amongst children by stipulating that: “Within the jurisdictions and authorities bestowed upon them, Signatory States of this convention recognise and guarantee the rights defined in this Convention to all children without any discrimination based on the children’s, their parents’ or guardians’ race, colour, gender, language, political or otherwise opinions, national, ethnic or social background, property, disability, birthright or any other status.”
Besides, by stipulating that: “Signatory States will encourage the establishment of appropriate bodies and authorities that will exercise laws and legal proceedings that are applicable only to the children that are deemed to have breached the law or indicted to have breached the Criminal Codes.” article 40/3 of the Convention ensures that children are tried by appropriately appointed courts.
In addition, Article 14/1of the UN Standard Minimum Applicable Rules Regarding the Prosecution of Children stipulates that: “In accordance with Rule 11, unless an extra-judicial method regarding the child-oriented prosecution is in question, the authorised institution in which the child is being prosecuted (Be it a Court, a panel or a council) will have to carry out the trial with fairness and honesty.” Article 14/2 stipulates that: “ The trial must be carried out in such a fashion that the child’s interests are observed in the best possible way in an environment where he can understand the procedure and expres himself freely.
According to the above, children between the ages of 15-18 should not be tried in the same courts as adults and should be referred to an authority and an environment that is dedicated to their needs.
1. The police officers appointed to deal with social incidents involving children should be selected from the Children’s Branch Directorate.
2. Excessive use of force is to be avoided in dealing with children. When children are detained they should be taken directly to the Children’s Branch Directorate and not to TEM [Prevention of Terrorism Branch] or any other place.
3. Families of the detained children are to be informed immediately of an arrest, experts’ help is to be sought promptly and interviews between children and their advocates should be arranged immediately.
4. The advocates should be able to examine the investigation files promptly.
5. The children should be produced before the Children’s Prosecutors promptly.
6. An expert doctor should carry out a thorough examination in order to establish the child’s ability to understand the consequences of what he had done. The findings should be verified in a report. .
7. When a child is being prosecuted, the police, the prosecutor and the judge should adhere to the Constitution, to the Protection of Children Act, the UN Convention Regarding Children’s Rights and to the European Convention on Human Rights.
8. To immediately abolish Articles 9 and 13 of the Prevention of Terrorism Act which classify children in 12-15 and 15-18 years age groups and which enables them to be tried by the Criminal Courts, authorised by Article 250 of the CMK.
9. The Supreme Court of Appeals’ decision that enables children to be tried and convicted in Criminal Courts is to be revised with the emphasis that it is does not observe the child’s best interest.
10. To set up a commission that will examine ways in which to solve the problems in practice with the aim of observing the children’s best interests, especially in areas where most problems are encountered. A conference titled: “What Kind of a Practice do we Seek” is to be held with the participation of the Human Rights Organisations, NGOs, Law Societies, Children’s Branch Directorates, Children’s prosecutors and Judges sitting in Children’s Courts, Court Experts dealing with children, Implementation Protection officers employed at Sentence Implementation Institutions.
11. In order to prevent children from falling into dispute with the law, the number of classes and teachers is to be increased, especially in Eastern and South-eastern Anatolian regions, to improve the quality of free education.
12. To increase the State’s BUDGET and the number of experts dealing with children’s problems.
13. Whilst determining policies and preparing legislations regarding children, the State is to co-ordinate efforts with NGOs specialising in children