HDP’s Tuncel’s Proposal on the Law of Misdemeanors

Source: http://www2.tbmm.gov.tr/d24/2/2-1907.pdf

TO THE PRESIDENCY OF THE GRAND NATIONAL ASSEMBLY OF TURKEY

I hereby submit my legal proposal for amendments to the Law of Misdemeanors File No: 5376 dated 30.03.2005 with reasonings.

I request that the necessary actions be taken.

Sebahat Tuncel

Istanbul Parliamentarian

GENERAL PREAMBLE

The acceptance of an act as a crime or misdemeanor is determined by penal policies. That the act contains an unjust character is the necessary requirement for it to be a crime or a misdemeanor. Classifying an act as crime or misdemeanor through the quantitative measurement of the unjust character is a requirement of modern democracies.

The classification of “Misdemeanors” and “Crimes” in the Turkish Penal Code No: 765 has lost its validity in terms of democratic regimes and the tendency to remove misdemeanors from crimes has risen. The need for the regulation of administrative sanctions arose after the Turkish Penal Code No: 5237 repealed Code No: 765 and led to the need for Law No: 5376.

The continued application of the Code has shown that the current regulation is deficient and specious. In fact, the definition and scope of some acts, which have been attached to administrative sanctions and are considered to be misdemeanors, are left up to the interpretation of the practitioner. Though the existing law binds misdemeanors to administrative financial penalties, understanding the issue through fundamental principles of penal law would be more legitimate and more logical in terms of legal procedure. Furthermore, the fact that the law refers to the Code of Criminal Procedure No: 5271 dated 04.12.2004 for enforcement purposes also necessitates that this regulation be evaluated through these principles.

There are several problems in the current understanding and application of the concept of “administrative sanctions:” the Ministry of Interior’s organization does not differentiate between judicial and administrative branches; both responsibilities are run by the Police Department; and employees of the Police Department have the authority to decide on some of the penalties in the Law of Misdemeanors. What had been envisioned as a “preventative” administrative financial penalty exceeds limits and turns into an instrument of “hate” and “punishment/revenge.” When we consider the fact that there is a particular kind of dominant police subculture at work, pressures on particular neighborhood become institutionalized.

In its current state, the law is far from creating social order. In fact, the administration “discriminates” in practice and thereby commits a crime. The current state of the law plays an active role in the increase of social violence against certain groups.

The Code cannot legitimize the crimes committed by administrative authorities. The Code is an institution of the legal state to provide the needs of society and to protect rights and freedoms.

It is absolutely necessary to amend the existing law that legitimizes discrimination against a certain part of society and opens the way to intervening in life styles.  Practitioners must be prevented from practicing with “moral values” and intervention in people’s social life should be minimized.

LIST OF GROUNDS ACCORDING TO ARTICLE

Article 1- The concept of morality and general morality differ from person to person and is an abstract concept that does not carry objective criteria. For this reason, the term “general morality” should be removed from the legal text. Along with this, because the terms “social order” and “disturbing peace and quiet” open the way to intervening in life styles, the scope of these concepts must be defined and the practitioner’s interpretative authority must be limited.

Article 2- The concept “to disturb” is vague and makes the law enforcement officer’s authority too wide when determining whether or not an act constitutes a misdemeanor. Therefore, the term must be changed and must be expressed through more rigorously defined concepts. Furthermore, in order to limit the interpretative authority in regards to what constitutes a misdemeanor, the statement of the person buying goods or services must be taken [before the administrative procedure begins].

Article 3- Principle of validity.

Article 4- Principle of conduct.

LAW PROPOSAL FOR THE PARTIAL AMENDMENT OF LAW OF MISDEMEANORS NO: 5326

Article 1- The 1st paragraph of Article 1 of the Law of Misdemeanors No: 5326 has been reorganized and the 2nd paragraph has been added as below:

“(1) In this law, to protect social order, general health, the environment, and the economic order;

a) General principles regarding misdemeanors,

b) The administrative sanctions that can be applied to misdemeanors and their results,

c) The decision timeline regarding misdemeanors,

d) The legal path regarding decisions on administrative sanctions,

e) The principles in carrying out the decisions on administrative sanctions.

Have been set and various misdemeanors have been defined.

(2) In the application of the Law of Misdemeanors;

a) Social order is understood as ensuring that the individuals composing society can live in an equal, free, and peaceful environment and without discrimination,

b) Disturbing peace and quiet is understood as making noise and engaging in other behaviors that are against the law.

Article 2- The 1st paragraph of Article 37 of the Law of Misdemeanors No: 5326 has been rewritten as follows:

“(1) A person who harasses others while selling goods and services is punished by an administrative sanction of 50 TL (25 USD) on the condition that the statement of person buying the goods or services is taken.”

Article 3- This law goes into effect the day it is published.

Article 4- The Council of Ministers carries out the articles of this law.

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