Comment on Section 4422 and Responses to Questions

Article I

1. A "ring for the purpose of committing crime" is excessively broad. This seems to cover even a minor crime and imposes very severe penalties. The breadth of the relevant activities related to such a purpose is so great that if a minor crime happens to be committed in the course of enterprise's activities, it will be easy for a prosecutor to impute purpose and a vast number of people would then become subject to prosecution.

This is a particularly serious problem for media organizations, for the line between criminal libel and other similar statutes, on the one hand, and legitimate speech on the other is very unclear. Under Turkish law almost any critical or "insulting" material is criminal. See Criminal Code, Articles 158, 159, 156, 480, 482.
This applies even to insults or critical comments about dead people like Mustafa Kemal Ataturk. This law thus constitutes a very grave threat against the free press, and it is almost certainly in violation of Article 10 of the European Convention Human Rights.

2. Article I severely punishes "anyone engaged in any action on behalf of such a ring or who purposely serve such a ring." This seems to penalize two categories, the first of which can include totally innocent actions by totally innocent people performed without any criminal purpose of knowledge of a criminal purpose. This follows from the fact that the second category refers to "purposely" and the first does not. This is grossly unfair for it can sweep into its net an enormous number of innocent people because of the breadth of the statute and the fact that it also reaches "any action on behalf of such ring," even the most minor and innocuous.

The same analysis applies to the next to last paragraph of Article I.

Article III, IV

Spying Searches of the home, records and data should not be permitted except with the Court's permission and only if there are "strong signs" that something that the authorities may seize is in fact present. Searches of homes should be permitted only under extraordinary circumstances and under close judicial control.

Questions

4. Article 5.3 of the European Convention provides "one shall be brought promptly before a judge...[and] entitled to trial within a reasonable time or to release pending trial." A five month detention before a judicial hearing is not "prompt" and the detainee must be
released, especially if the prosecutor admits the suspicion is weak.
Seven months under these circumstances is an even clearer violation
of Article 5.3 of the Convention.

5. Evidence obtained in violation of law may not be considered
legal evidence and under the laws of most countries would not be admitted in evidence. This is a violation of "the right to respect for... private life." Exclusion of the evidence is the only effective remedy andwould seem to be required by Article 13 of the Convention.

6. Evidence obtained in violation of Article 3 of the Conventin may

not be admitted.

8. Nine months custody without a trail cannot be justified. The relevance of the prosecutor's belief is a matter of Turkish law about which I have no knowledge.

Herman Schwartz

Professor of Law

Washington College of Law

American University

4801 Massachusetts Ave. NW

Washington, DC 20016