Discriminatory sexual offence laws continue to impact the lives of many Commonwealth citizens, particularly affecting women, children, and LGBT people. These laws are at odds with international and regional human rights norms and domestic constitutional law. They undermine human rights and perpetuate violence, hate crimes and discrimination, and threaten the health and prosperity of entire societies. Several countries have however, made real progress in reforming their laws through either wholesale updating of criminal codes, allowing multiple issues to be tackled together, or through targeted reforms.
This series of case studies from the Human Dignity Trust highlights these recent examples. This case study focuses on the situation in Northern Cyprus. This case study is split into eight parts: background information about the country; offences laws under reform; chronology of legislative reform; drivers of reform; consultation, drafting and passage of reform; areas of ongoing work; and, lessons learnt from the reform process.
In February 2014, the Turkish Republic of Northern Cyprus (‘TRNC’) took a very important step in repealing its colonial-era Penal Code provisions that criminalised private consensual same-sex sexual conduct between adults, sections 171 to 173 of the Criminal Code of 1959 (‘1959 Criminal Code’) – being the last jurisdiction in Europe to do so – and this was undertaken as part of a package of reform that addressed the TRNC’s sexual offences laws more broadly.
The TRNC is a self-declared state, which is presently only recognised as an independent state by Turkey. The UN and the international community continue to recognise the sovereignty of the Republic of Cyprus over the entire island of Cyprus in accordance with international law. In light of this, where this study refers to the ‘TRNC,’ its democratic procedures, multi-party structures, ministries, government officials and organs of government, it is for ease of reference only. References to the TRNC in this report should not be interpreted as a recognition of the TRNC as an independent state.
The 1928 Criminal Code- enacted by the British colonial administration- introduced various sexual offences under the title of Offences Against Morality, which included the criminalisation of private consensual same-sex sexual acts between males for the first time by introducing the concept of “carnal knowledge against the order of nature,” which carried a prison term of five years. The 1928 Criminal Code was replaced in 1959 as part of the codification of numerous colonial laws in anticipation of Cyprus gaining its independence from the British (‘1959 Criminal Code’). The substance of the provisions on sexual offences remained unchanged. Following Cyprus’ independence from the British on 16 August 1960 and the establishment of the Republic of Cyprus, the provisions of the 1959 Criminal Code stayed in force, as per Article 188 of the Constitution of the Republic of Cyprus. In 1983, when the Turkish Cypriots unilaterally declared their independence from the Republic of Cyprus, the 1959 Criminal Code remained in force.
The passage of reform between 2013 and 2014 is best described as discontinuous, with changes in government both suspending and resurrecting the Criminal Code (Amendment) Bill 20/2014 (‘Amendment Bill’). Ultimately, it appears that the re-emergence of the Republican Turkish Party and their deputies in the July 2013 general election proved decisive in reigniting efforts for reform in December 2013. Political champions played a significant role in reintroducing the Amendment Bill to the Assembly, developing the proposed changes at the committee stage in consultation with civil society groups and advocating for its approval in the Assembly.
The Amendment Bill was passed on the 27 January 2014 with 28 votes in favour, one vote against and 21 abstentions. The Amendment Law received presidential assent at the beginning of February and finally became law on 7 February 2014.
The Amendment Law made changes to 44 sections of the 1959 Criminal Code. Key changes included: creating gender neutral offences (in particular boys and men were recognised as victims as well as perpetrators of sexual offences); the incorporation of a consent provision; the removal of derogatory and inappropriate language; and the creation of greater protection for children against sexual abuse and exploitation.
Although the reform of the 1959 Criminal Code was hailed as a success in the effort to decriminalise private consensual same-sex sexual acts between adults and improve the protection of women and children against sexual offences, the general consensus is that further reform is necessary to both address the continuing deficiencies in the sexual offences provisions and tackle a number of other shortcomings in the 1959 Criminal Code that were not part of the 2014 changes. A further amendment bill to the 1959 Criminal Code was introduced to the Assembly in 2017 and 2018 by the Republican Turkish Party, which sought to address, in part, some of these issues. However, political changes in 2019, which resulted in a new coalition government that does not include the Republican Turkish Party, have for now obviated the adoption of this further amendment.
The case study identifies six lessons learnt in the sexual offences reform process in Northern Cyprus:
- The importance of civil society in legal and policy changes, but also in social transformation;
- A package of reforms were supported by the Assembly making them more credible and probable;
- Political champions were key to having the 1959 Criminal Code amendments placed on the political agenda and ultimately enacted within six months of a coalition government having been formed;
- The limited resources, capacity and lack of technical legal expertise within the TRNC administration and Assembly were highlighted as a key difficultly during the reform process;
- Legal change needs to be accompanied by implementation.