When the children between the ages of fifteen to eighteen are allegedas, accused of or recognised as having infringed the Law on Struggle Against Terrorism (hereinafter referred to as “ LSAT”), they are subject to the same rules as the adults in respect of the detention, arrest, place of jurisdiction, proceedings, nature of punishmetn and execution of punishment.
When the children between the ages of twelve to fifteen are alleged as, accused of or recognized as having infringed the LSAT, they are subjected to protective orders with regard detention, arrest, place of jurisdiction, proceedings, arrest of judgement, suspension of sentence, converson to imprisonment and other options, and yet these children are still subjected to the rules applied to the adults with regard to the punishment.
As a result, when children between the ages of twelve to eighteen are alleged as, accused of or recognized as having infringed the LSAT , the fact that they are children is ignored partially for those between the ages of twelve to fifteen and completely for those between the ages of fifteen to eighteen.
This very problem is a threat to any and all children living in Turkey regardless of the place they live, the language the speak, the religion they believe and the ethnical identity they beolng to. Before all, this is a very important junevile issue. On the other hand, it grew larger in some aspects upon amendment of the LSAT in 2006, but in the heart of it, this is a problem that emerged approximately twenty years ago when LSAT was accepted.
II- CONCRETE PROBLEMS
In the respect of the children victims of LSAT, the principles are mostly breached b the legislative dispositions as well as their application. Although the following regulations wpuld originally be implemented for adults, it is especially and explicitly mentioned in respective provisions that they are also applicable for children. The major problems of children who suffer from LSAT are referred below:
A) Problems for Children between the Ages of 15 to 18
The investigation is conducted not by the child’s department prosecutors but by the specially authorized prosecutors, who are responsible for investigation process under the Law on Struggle Against Terrorism.
- Although the testimony of children should be taken by the child’s department prosecutors in person, for investigations within the scope of , the testimony of children is sometimes taken by the police.
- While the testimony of children is taken, the possibility of taking it under auspices of an almoner is not applied.
- The detention period of twenty four hours is applied for forty eight (48) hours for children as well. This period can increase up to five (5) days for collective crime allegations.
- If the intended purpose of the investigation is likely to be risked, a relative of the child in detention is notified only upon order of the public prosecutor. However, for judicial crimes, a relative or another person determined by the concerned person in detention can be notified, again, upon order of the public prosecutor. Accordingly, provided that the child, arrested or in detention, has no possibility to reach his/her relative during the detention period, in this case preventing the child from notifying another person leads to the fact that the child stays in detention with further notice to anyone.
- While taking the testimony of a child, only one lawyer is permitted to be present without a power of attorney. However, for judicial crimes, three lawyers are permitted to be present without a power of attorney.
- Upon demand of the public prosecutor and order of the judge, the right of the child in detention to see his/her lawyer can be restricted to twenty four hours. No testimony is taken during that time. However, no such restriction applies to the judicial crimes.
- Maximum period of arrest in high criminal courts that is provided in law is not applied to the children who are judged within the scope of LSAT. Maximum period of arrest, which could be at most three years in compulsory cases, will not apply to the children until the end of 2010. However, since 2011, the same period will apply as double to the children who are judged within the scope of LSAT.
- Provided that the lawsuit is brought to the court within a two-year period of time till the end of 2010, the state of being arrested maximum for two years during the investigation process will also apply to the children. On condition that the lawsuit still continues following the two-year arrest, it will be possible to extend the period of arrest with no specific upper limit for children who are judged for crimes that require imprisonment above seven years.
- Because the possibility of the adjourn of explanation of the sentence, which is only applicable to the crimes requiring a punishment of two years at most, and which means that the sentence bears no legal consequences, is forbidden, it cannot apply to children.
- Because deferment, which is only applicable to the children who commit crimes requiring three years at most, is forbidden, it cannot apply to the children who are judged within the scope of LSAT, either.
- Because conversion to judicial fine or other optional sanctions, which are only applicable to the crimes requiring at most one year, is forbidden, it cannot apply to the children, either.
B) Problems for Children between the Ages of 12 to 18
The punishment of children who are judged for the crimes within the scope of LSAT can be increased as half in any case. However, the punishment inflicted following such an increase is reduced depending on the age of the child in question. However, no increase depending on the nature of the crime should apply to children who are punished. The punishment inflicted on children should only be subjected to a reduction depending on his/her age.
- The applicable provisions of conditional release in case of adjourn of two third of the punishment inflicted for judicial crimes are made depended on the condition of adjourn of three fourths for children who are punished within the scope of LSAT.
- There is no obstacle for gross disciplinary sanctions applicable to the enforcement of crimes within the scope of LSAT as well as the solitary confinement to become applicable to children as well.
III- WHAT SHOULD BE DONE?
In order to resolve these problems regarding the children legally;
1. A clean arrangement should be done indicating that Article 5 of the LSAT that increases the punishment,
2. As well as Article 17 regarding the investigations and enforcement of punishments cannot apply to children.
3. The provisions specified in Article 9 of the same law that leads children who are between the ages of 15 to 18 to be judged at high criminal court with special authority should be abolished.
4. Again, the prohibition of adjourn of explanation of the sentence, which is provided for children between the ages of 15 to 18, and of optional sanctions as specified in Article 13 should be abolished.
5. Another important point is that an arrangement should be done indicating that the provision 7/2-a of LSAT, which enables the individuals who attend the demonstrations that end up with an illegal organization propaganda are punished as if the individuals who make propaganda for illegal organizations because they cover their face partially or entirely, cannot apply to children. In other words, children who attend demonstrations and cover his/her face either in part or in full should not be inflicted with a separate punishment due to such an action.
6. Finally, a clear provision should be added to LSAT indicating that the Child Welfare Law should apply, without exception, to the children who are impeached within the scope of LSAT.
Turkish Law System recognizes the basic principles of Child Welfare Law. There are clear provisions in the Constitutional Law in this regard. The UN Convention on the Rights of Children was accepted and executed, plus quite detailed and protective arrangements were made with the Child Welfare Law, thus the legal basis for an advanced system of child welfare has been established. Juvenile Courts, Police Departments for Children were founded, thus structural initiatives were taken. There are available Children Departments that employ an almoner continuously. The criteria considering children’s psychology in selecting children’s judge, prosecutor and law-enforcement officer are implemented. All these components strongly underline the inclination of Turkish Law System to adapt the child welfare law thoroughly with all aspects and to establish it structurally. Therefore, differing practices of the system regarding the children who suffer from LSAT is definitely a deviation. And this deviation should be eliminated.