Comparison Of Afghan And Turkish Penal Codes
1. Background and Structure
Afghan Penal Code (2017):
A comprehensive criminal law aiming to modernize and unify the system. It incorporates Islamic principles alongside secular laws. It covers offenses, penalties, procedures, and special crimes such as terrorism and narcotics.
Turkish Penal Code (2004):
Modern and secular, inspired by European continental law, designed to ensure rule of law, human rights, and align with EU standards. It includes extensive provisions on general principles, crimes, penalties, and special crimes.
2. Fundamental Principles
| Principle | Afghan Penal Code | Turkish Penal Code |
|---|---|---|
| Legal Basis | Mix of Islamic law (Sharia) and secular law | Primarily secular, influenced by European law |
| Equality before law | Constitution guarantees equality but with some gender disparities in practice | Strong constitutional guarantees of equality |
| Presumption of innocence | Art. 12 (Criminal Procedure Code) - presumption of innocence | Article 38 - presumption of innocence, human rights emphasized |
| Punishment Types | Includes death penalty (in some cases), corporal punishment (in practice) | Death penalty abolished (since 2004), imprisonment and fines predominant |
3. Specific Offenses and Penal Provisions
**A. Murder and Homicide
Afghan Penal Code:
Premeditated murder is punishable by death or life imprisonment (Art. 396).
In some cases, "Qisas" (retribution) and "Diyya" (blood money) principles apply.
Turkish Penal Code:
Article 81 defines intentional murder with life imprisonment as the maximum penalty.
No death penalty since abolished in 2004.
Case Comparison #1: Murder Punishment
Afghanistan (2016):
A tribal dispute led to the killing of a local elder. The accused was sentenced under the Penal Code, but family of victim requested Qisas. The court ordered blood money, and the case settled out of court after compensation was paid.
Turkey (2018):
A case of intentional murder was prosecuted, and the perpetrator sentenced to life imprisonment with no possibility of pardon due to aggravating circumstances (e.g., victim was a public official).
Analysis:
Afghanistan’s system blends secular penalties with traditional tribal justice mechanisms (Qisas/Diyya), whereas Turkey applies strict secular penalties with no room for compensation settlements in murder cases.
**B. Corruption and Bribery
Afghan Penal Code:
Articles 393-397 address corruption, with imprisonment and fines.
Enforcement is weak; high-profile cases often go unpunished.
Turkish Penal Code:
Articles 252-261 specifically criminalize bribery, with imprisonment from 1 to 12 years depending on severity.
The system actively prosecutes corruption, with recent reforms to improve enforcement.
Case Comparison #2: Corruption Cases
Afghanistan (2019):
A government official was accused of accepting bribes but was released due to lack of evidence and political interference.
Turkey (2020):
A former mayor was convicted of accepting bribes worth millions of Turkish Lira and sentenced to 8 years imprisonment after a public trial.
Analysis:
Turkey’s criminal justice system tends to be more independent and effective in prosecuting corruption, while Afghanistan struggles with political influence and weak enforcement.
**C. Freedom of Expression and Press
Afghan Penal Code:
Article 134 prohibits speech that insults Islam or state institutions.
Journalists often face harassment, and blasphemy laws are broadly applied.
Turkish Penal Code:
Article 301 criminalizes insulting Turkish identity or state institutions, but its application has been controversial.
Press freedom is constitutionally protected, yet in practice, several journalists have been prosecuted.
Case Comparison #3: Freedom of Expression
Afghanistan (2015):
A journalist was arrested for publishing articles criticizing government corruption, charged under laws against defamation and insulting religion. The trial faced criticism for lack of transparency.
Turkey (2017):
A prominent journalist was prosecuted under Article 301 for allegedly insulting the president but was later acquitted after international pressure.
Analysis:
Both countries face challenges balancing freedom of expression with laws protecting religion and state honor. Turkey’s legal system is more codified but also politicized in some cases, Afghanistan’s system is less stable and more vulnerable to abuse.
**D. Drug Trafficking
Afghan Penal Code:
Afghanistan’s Penal Code criminalizes production, trafficking, and possession of narcotics, with severe penalties, including life imprisonment.
Enforcement is challenging due to Afghanistan’s status as a major opium producer.
Turkish Penal Code:
Turkish laws criminalize drug offenses with imprisonment ranging from 4 to 20 years.
Turkey has more effective border controls and law enforcement capacity.
Case Comparison #4: Drug Trafficking
Afghanistan (2018):
A drug lord was arrested and sentenced to life imprisonment, but due to corruption, his network continued operating.
Turkey (2019):
A transnational drug trafficking ring was dismantled with arrests and convictions in Turkish courts, including extradition of foreign suspects.
Analysis:
Turkey’s stronger institutional capacity and international cooperation contribute to more effective prosecution of drug crimes compared to Afghanistan’s systemic challenges.
**E. Terrorism
Afghan Penal Code:
Contains specific anti-terrorism provisions (Art. 39 and onwards).
Allows for special courts and harsher penalties.
Security context affects fairness of trials.
Turkish Penal Code:
Articles 314-316 criminalize terrorism and membership in terrorist organizations.
Courts apply strict anti-terror laws but face criticism for potential rights violations.
Case Comparison #5: Terrorism Trials
Afghanistan (2020):
Multiple Taliban insurgents were sentenced to death or life imprisonment after trials in special courts. International observers questioned due process.
Turkey (2021):
Several individuals accused of terrorism faced lengthy trials; some convictions were overturned on appeal due to procedural errors.
Analysis:
Both penal codes have strict anti-terrorism provisions, but Afghanistan’s judicial system struggles to guarantee due process in conflict conditions, while Turkey’s system is more institutionalized but criticized for rights concerns.
Summary Table
| Issue | Afghan Penal Code | Turkish Penal Code |
|---|---|---|
| Basis | Islamic + secular law | Secular, European influenced |
| Death Penalty | Allowed | Abolished since 2004 |
| Corruption Prosecution | Weak enforcement | Active and ongoing reforms |
| Freedom of Expression | Restricted by blasphemy/defamation | Protected but limited by insult laws |
| Drug Crime | Severe penalties but weak control | Severe penalties, effective enforcement |
| Terrorism | Harsh laws, special courts, fragile due process | Harsh laws, regular courts, procedural safeguards |
Conclusion
Afghan Penal Code blends Islamic legal principles with modern criminal law but faces challenges due to political instability, weak institutions, and traditional justice influences.
Turkish Penal Code is secular, aligned with international standards, and generally has stronger institutional enforcement.
Both countries face issues in areas like freedom of expression and anti-terrorism laws, reflecting tensions between security and rights.
RELATED Blog
0 comments