In a wider context, it should be admitted, that there is an absolute correlation between increasing trend of death penalty abolishment and increasing respect of human rights in a globalising world including Turkey (Shabas, 1998). As defined by Chapman (2009, p. 97), "globalisation is a process characterized by the growing interdependence of the world's people, involves the integration of economies, culture, technologies, and governance." This definition of globalisation can be enriched by including in it a development of common norms and values (Arat, 2005). Even though the Universal Declaration of Human Rights, proposed by the United Nations, states that human rights should be recognised as universal, it can be argued that they are debatable and in certain circumstances can be challenged and criticised.
The main focus of this article will be on the abolishment of death penalty in Turkey. Although there are some objections, this article will illustrate why the abolishment of the Death Penalty is vital in the Turkish justice system. To be able to discuss this thesis effectively, this article has been divided into 3 parts. It begins with the analysis of the previous death penalty implications in Turkey until it was abolished, followed by the analysis of how death penalty was totally abolished and if it was a good step for democracy. Finally, this article will discuss the necessity of abolishing death penalty in Turkey.
The death penalty was in effect between the early 1920s and 2000s in Turkey; however, the last execution was carried out in 1984. All Turkish Constitutions (1924, 1961, and 1982) had some regulations protecting right to life but death penalty was an exception. According to regulations in these constitutions, in order to be able to carry out death sentence, an approval should be given from the parliament. The reason why this authority had given to the parliament was to provide a final assessment on execution to discuss whether the implementation of death penalty would bring any benefit for public good or not (Gemalmaz, 2002). Moreover, parliament had a tendency to not give this approval although courts sentenced to death penalty. There was an "actual suspense" on execution since the last execution in 1984. Nevertheless, when it comes to "pre-1984 process" it can be stated that death penalties were mostly imposed in the military and half military era.
Having considered the era where death penalty was legal in Turkey, it is evident that even though the parliament was in favour of not carrying out this penalty apart from military process, the regulations related to death penalty were located in Turkish Law for a long time. It is possible to argue that having death penalty in law was to be considered as a good deterrent for terrorism that occurs at times in Turkey. Nonetheless, it is also possible to criticise the decisive power of parliament on implementation of the death sentences given by court for several reasons. First, judicial decision given by legislation body was against checks and balances principle, which is an indispensable necessity for democracy. As Gemalmaz (2002) mentioned, in the past, the theoretical position of parliament, which should be engaging only in activities related to politics but not judgement, was not totally true in practice. Furthermore, It would not be wrong to say that some technical issues could occur related to criminal law in parliament and it could occupy parliament unnecessarily. Secondly, it was widely believed that there were no coherent reasons for having mercy for some convicts while approving the other's death sentences to carry out (Gemalmaz, 2002). Accordingly, given that parliament are generally under the pressure of politics, its objectivity was more questionable because of not providing enough explanation. Finally, there was not a significant evidence to suggest what happens if parliament had mercy for a death penalty. There was a legal gap on whether death sentences would be automatically converted into life imprisonment without an official court decision. Therefore, it seems that the era before abolishing death penalty was not consistent with democratic principles.
Turkey totally abolished death penalty in 2004 by signing the European Convention on Human Rights protocol no 13. This protocol`s paragraph 4 states that "Being resolved to take the final step in order to abolish the death penalty in all circumstances" (European Convention, 2003). Besides, domestic law was adapted in accordance with this international law. At this point, it might be argued that such international treaties interfere in the state's sovereignty and allows few liberties. As Evans (1998) noted human rights, which were formulated by developed countries, are merely justification of accessing to global market and of establishing dominance over it. From this point of view, it seems like European Union forced Turkey, by using their political and economic power, to sign this protocol to legitimise their desire on Turkish domestic law which means there is not a factual spread of democratisation in Turkey and the norms based on human rights are nominal. There is some truth in the idea that signing European Convention on Human Rights did not bring an absolute respect on human rights in Turkey while European countries had some monitoring and reporting rights on Turkish law, which is a sign for interference in Turkish sovereignty.
Besides, according to the Turkish Constitution Article 90 (1982) If there is a conflict between international law, related to fundamental rights (among them the most important one is no doubt 'right to life'), and domestic law on the same field, the priority will be given to the provisions of international agreement. It follows that supposing Turkish public opinion require death penalty for any purpose, it would be impossible to introduce a law legalising it because of the superiority of international agreement, which arguably restricts the self-determination of Turkish law. However, it may also be admitted that there should be some common values which will be respected all over the world like 'right to life' and these values should be regarded as individual sovereignty and should be valued more than state sovereignty on them. As Rawls (1999a) observes, fundamental human rights must be considered as "binding on all peoples and societies, including outlaw states that violate these rights" (Cited in Beitz, 2001, p.7). Thus, abolishing death penalty in Turkey, by signing European convention protocol no 13, should not be considered as a threat on domestic law; on the contrary, it should be regarded as a positive step taken towards being a more state of law.
In 2016, the necessity of death penalty had been discussed excessively after the Ozgecan case in Turkey. According to the report of journalist Ozbudak ( 2015) Ozgecan, who was a 20-year-old university student, was tried to be raped and murdered for resisting and her body was burned to destroy any evidence. In such a case it could be argued that some people deserve to be executed and in order to provide reliance on justice and to fix public conscience, as Kant (1999, p.132 ) suggested, 'an eye for an eye' principle should be implemented. This principle proposes that if one commits murder, then it is appropriate to the morality to execute this person in return, as he is not innocent anymore to benefit from right to life and it is death penalty that perfectly fits the murder crime.
However, death penalty is the violation of right to life which is defined in the European Convention on Human Rights as "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law" (European Convention, 1953). Besides, Stichter (2014) claims that 'an eye for an eye' principle is not applicable for other situations. For instance, if a criminal kidnaps a child for 2 days then it would be equivalent to solely two days in prison as sanction. Furthermore, rape and torture crimes would be required to be responded the same, which is apparently against the respect for human. Therefore, some punishments including execution are against to the humanity and are not allowed in terms of moral issues. On the other hand, it can be argued that possibility to execute innocent person is unfair since there is no chance to compensate it. Given that there were a great number of cases where people sentenced to death afterwards turned out that they were innocent, which were the clear signal of irrevocable punishment.
Yet, there might be a number of criticisms as to arguments supporting abolishing death penalty. Firstly, Pojman (1997) claims that it is in nature of the world that bears some risks for innocents and this is not an excuse to abolish death penalty. He maintains that there are a lot of dangerous sports all around the world where innocent people are in a risking their lives such as car racing where cars are generally driven above 100 km that could be concluded with an accident containing audience. Secondly, supporter of death penalty may state that not only death penalty but also life in prison is irrevocable. However, as a justification for former criticism it can be claimed that it would be a tragedy in case a car accident happens and leads some audience to die while executing an innocent person would be injustice. Furthermore, there is no alternative method to acquire as much benefit as how taken from extreme sport but there is an alternative method for death penalty which is life in prison without parole. Regarding the latter criticism as to irrevocable issue it seems that death penalty has a different situation compared to life in prison. If someone sentences for life in prison and later it turns out that this person is innocent, the punishment does not implement anymore and he can be set free and can be compensated financially though it would not bring back the time spent in imprisonment. Yet, it is clear that the same situation is impossible for wrongly-executed person. Thus, there is a valid point in saying that abolishing death penalty in Turkey is more appropriate to modern justice system which has more respect for the right to life.
In conclusion, this article has discussed that in a globalising world, abolishing of death penalty in turkey tends to improve the respect for human rights and democracy. It has been shown that there were some hitches in the justice system while the death penalty was in effect. Despite some debateable sovereignty issues, Turkey's participation in European Convention on Human Rights was a sign of positive impact of globalisation in Turkey to become a more democratic constitutional state. The Ozgecan case was a relevant example to indicate the importance of discussing whether death penalty is required for a democratic country like Turkey. There have been more reasons to abolish death penalty to take one more step toward being a lawful state. Even though there is an international treaty prohibiting death penalty in all member states including Turkey, still having discussion about the necessity of death penalty in the emotive environment caused by traumatic death of Ozgecan seems not plausible since it is impossible to reinstate death punishment unless the Turkish constitution is amended, which hopefully will not.
02.01.2018
Atty Gonenc Yay, LL.M