Başak Çalı discusses recent draft legislation and its implications.
On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.
In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system. In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes.
This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.
Why now, now what?
There has been a global abolitionist trend concerning the death penalty over the past forty years. Between 1977 and 2017 the global community went from 16 countries that had totally abolished the death penalty to 106. Indeed,146 countries are abolitionist in law or in practice. A key feature of this abolitionist trend is that it takes place through executive practice and parliamentary amendments.
Turkey has been part of this abolitionist trend since the 1980s, prior to which the political use of the death penalty created many scars on the Turkish political consciousness. A moratorium on the death penalty started in 1984, with the practice finally outlawed, for peace time offences, on 9 August 2002. The abolishment then had cross-party support – including from the nationalist MHP party (then part of the coalition that governed Turkey between 1998 and 2002). The AKP came to power for the first time in November 2002. A year after, Recep Tayyip Erdoğan, then prime minister, signed Protocol 6 ,thus abolishing the death penalty, and the AKP-majority parliament ratified it. On 14 July 2004, it was the AKP-majority parliament that abolished the death penalty also in times of armed conflict. Two years later Turkey ratified Protocol 13 to the European Convention on Human Rights abolishing the death penalty in all circumstances.
Chatter around bringing back the death penalty has increased in volume in Turkey after the failed coup attempt of 2016. President Erdogan on numerous occasions indicated that, if the people wanted the death penalty reinstated and if Parliament voted on such an amendment, he would approve it. The two coalition partners of Erdogan for the 2018 parliamentary election, the MHP (the Turkish National Movement Party) and the BBP, have also been public about their wish to bring back the death penalty. This in particular as a retributive measure against the terrorist group the PKK.
The AKP-MHP-BBP coalition has 340 voting members in Parliament. Reintroduction of the death penalty in Turkey requires a constitutional amendment. Such an amendment can be done in two ways – via a referendum, or directly by Parliament. To take a constitutional amendment to referendum requires 360 votes in favour. To introduce a change directly through Parliament requires 400 votes. To take Ekinci’s proposals to a referendum, therefore, requires the support of 20 more MPs from outside the ruling coalition. This is not an impossible number to secure.
This proposed legislation can fail. But if it does not, research shows that the question of the death penalty is divisive as a matter of inter-personal morality in modern societies. Polls show majority or near majority support for the death penalty amongst individuals in many countries, including in those that have abolished the death penalty. The public, in general, is emotionally moved by arguments in support of the death penalty against those who sexually abuse and then murder children and women, and those who blow up innocent civilians. Such referenda can succeed not only in Turkey, but also in other European countries, if they were to take place. It is for this reason that in Europe, European institutions provide an extra layer of protection to lock states into the abolition of the death penalty. In both the European Union and the Council of Europe, the death penalty is conceived as a red line that no state can cross, thereby increasing the costs of national moves to reintroduce it. What happens if a state crosses that red line?
Death penalty as Trexit
In the Brexit affair, it was migration that many in the UK wanted control over. They didn’t necessarily want the rest that came with it. In the Turkish case, some may indeed want the death penalty for the most heinous crimes, but this is not possible alone. Reintroducing it in Turkey may mean a double Trexit, from the EU accession process and from the Council of Europe.
The absolute ban on the death penalty under all circumstances is inscribed in the Charter of Fundamental Rights of the European Union and reintroduction of the death penalty would put an end to Turkey’s status as an accession country.
The Council of Europe, too, is a death penalty-free zone across its 47 member states. In 1989, the abolition of the death penalty was made a condition of accession to the council. Since then, all new members have either committed to introducing an immediate moratorium on executions or have ratified Protocol 6 – banning the death penalty for peace time offences when joining the organisation. Protocol 6 today has 46 ratifications; the one exception – Russia – has a moratorium on the death penalty. Belarus, the only country on the European continent that is not a member of the Council of Europe, has not been admitted to the Council because of, among other reasons, its active use of the death penalty.
In 2010, the European Court of Human Rights, in Al Sadoon and Mufdhi v. United Kingdom, clearly stated that right to life under Article 2 of the ECHR has been amended by the almost universal ratification of Protocols 6 and 13 so as to prohibit the death penalty in all circumstances.
Given Turkey’s ratification of Protocols 6 and 13, a reintroduction would constitute a material breach of its obligations. Turkey would also be in direct breach of Article 2 of the European Convention on Human Rights.
If the proposal were to succeed, members of the Council of Europe would face an important decision. They would have to decide if a country reintroducing the death penalty would need to be suspended or expelled as per the Statute of the Council of Europe. Expulsion would end the oversight of the European Court of Human Rights over Turkey. Given that Russia also has the death penalty as a matter of law, Turkey may also be asked to impose a moratorium on its reintroduction of the death penalty. This, however, would entail high domestic costs, assuming that the reintroduction of the death penalty was not put forward with a view to a moratorium.
The bill introduced in Turkish Parliament on 1 October 2018 has set a collision course. If it succeeds, it will put into motion larger developments and recalibrate Turkey’s legal relations with European institutions and abolitionist states. Turkey would not only turn its face to its own thirty-four-year moratorium on the death penalty, but also to its membership and standing in the institutions of Europe. In the age of exit that we live in, this would be the end of an era in Europe.
Originally published in EJIL: Talk