ANKARA: AK Party Mulling New Article

Ercan Yavuz Ankara

Today’s Zaman, Turkey
Aug 16 2007

In the face of incessant pressure from the European Union to amend
Article 301 of the Turkish Penal Code (TCK), the government is
planning to table an amendment before Oct. 21. Prominent jurists
in the ruling Justice and Development Party (AK Party) have focused
on various alternative texts for Article 301 and in the final draft
prepared in collaboration with criminal law specialists from various
universities, the words "Turkishness" and "Republic" are replaced with
"Turkish nation" and "Turkish republic’s state," respectively.

Before launching an action under Article 301, prosecutors will now
have to seek permission from the head of state.

In January of this year the government requested that various
nongovernmental organizations prepare a joint text, and resulting
proposal suggested that the upper limit of any prison sentence be
lowered to two years from three and that the line "In the event the
crime of denigrating Turkishness is committed by a Turkish citizen
in a foreign country, the penalty shall be tripled" be deleted. The
distinction between committing the offense at home or abroad would
then be eliminated.

The NGOs also referred to Article 66 of the Constitution, and suggested
that "Turkish" should be defined in terms of a "connection to the
Turkish Republic through the bond of citizenship." The government
rejected the text proposed by the NGOs, saying it was worse than
Article 159 of former TCK, then decided to further study the issue
in light of the proposals. These studies have been in progress for
some months.

Jurists have a proposal concerning 301. They suggest that the entire
article should be deleted from the TCK, a move favored by the EU.

However, the government’s current steps to deal with the issue imply
that amending the text is preferred to complete annulment.

Outlines of the new article determined

The proposal favored by the government is the text prepared by
former Supreme Court of Appeals President Sami Selcuk. Selcuk argued
that the term "Turkishness" in Srticle 301 should be replaced with a
more abstract term, "Turkish nation," which is defined as "a group of
people who are connected to the state through the bond of citizenship,"
and that this would be the appropriate legal approach.

Selcuk also maintained that the term "Republic" should be replaced
with the term "Turkish republic’s state," which can be extended
with the phrase "the Turkish Parliament, the Turkish government, the
judicial organs of the state, the legislative, executive and judicial
organs." He also stated that the phrase "the military and security
organizations" should be replaced with the "military, security and
protection-oriented forces."

It seems that the AK Party’s jurists have examined Selcuk’s proposal
and concluded that this is the most reasonable proposal ever made.

The jurists think that these proposals will ensure that the offense
is no longer an abstract one and agree with the NGOs’ suggested
removal of the distinction between committing the offense at home or
abroad. Another challenging issue before the AK Party is whether the
system of consent for litigation will be reintroduced to Article 301.

For Selcuk, if the phrase "Turkish republic’s state" is inserted into
the text, then consent for any litigation under the article should
be sought from the president. The AK Party has not made up its mind
about the reintroduction of consent.

They support the adoption of an alternative provision: "A person who
openly denigrates the Turkish nation, the Turkish republic’s state,
the legislative, executive and judicial organs, the military and
security and protection-oriented forces in ways (which exceed the
limits of objective criticism and) to undermine their prestige and
public trust in them shall be sentenced to a period ranging from
six months to two years in prison. Expression of thought which has
the purpose of criticism does not constitute a crime. Consent to a
prosecution for the above-mentioned offenses shall be given by the
president, who will assess the matter in regard to the public good."

Turkey’s escalated interest in amending Article 301 is attributable
to decisions of the European Court of Human Rights that have found
Turkey to be in violation of the European Convention on Human Rights.

Indeed, of 205 decisions given by the court between 1999 and 2006,
125 found Turkey in violation. In other words, more than half of
the decisions concerned Turkey: 39 out of 50 decisions in 2005; and
35 of 62 decisions in 2006. This grave picture serves as a pretext
for the groups within the EU to campaign against Turkey’s EU bid,
so to counteract them the government is preparing new measures for
Parliament and the new president.

Seven amendments have not solved the problem

Article 301 has always been a headache for Turkey since its
introduction into the TCK from the Italian Penal Code in 1936. Since
that time, it has been amended seven times, with the biggest overhaul
being made in 2004, when was given its present enumeration. Turkey
now plans to introduce an eighth version of the article. In four
of the previous seven amendments, the scope of the article was
expanded to include state organs previously not specified. The last
three amendments attempted to narrow the scope of the article and
the first of these saw the advent of the provision that expressing
thoughts for the purpose of criticism does not constitute a crime,
by the government of the late Prime Minister Bulent Ecevit. The AK
Party subsequently amended the text to ensure that the provision was
applicable to the entire text, and the term "belittling" in Article
159 was replaced with "denigration."

The consent of the justice minister, which was previously required
for prosecutors to launch cases under Article 159, was no longer
required. This proved to be very effective in decreasing the number
of actions brought under Article 159. However, the renumbering of the
article from 159 to 301 caused an unexpected surge in the number of
trials. The article was transformed into a weapon for those Turkish
groups that are against the EU bid, and they started to file numerous
complaints to prosecutors based on the article.

Amendment or abolition?

Turks are divided on Article 301: There are those who argue for
amendment or abolition, with the amenders constituting a majority. It
seems that Turks have given up on prospects of abolishing the article,
and the idea that the matter should be left to the judges elicits
the opinion that this is currently unrealistic and that "good judges
emerge in good societies."

Former Justice Minister Cemil Cicek notes that the text of
the article is not problematic and that problems arising from
the implementation of the article would be eliminated with the
transformation of judicial perceptions. Cicek is an avid supporter of
the "if-there-is-a-good-judge-then-there-is-no-ba d-law" approach, and
consequently, is in the amendment camp. He gives examples from European
practice, supported by statistical data, proving that despite the
high number of trials, the number of those actually sentenced is low.

Are judges’ interpretations wrong?

"We’ve previously declared that all groups are able to express their
opinions about Article 301. However, the proposed text proves to
be worse than the former Article 159. Moreover, the NGOs could not
reach an agreement on it despite the government’s insistence that
it does not wish to reintroduce the old 159. As a result, the EU
harmonization laws were enacted, and we want this to continue. Our
jurists have been working on this issue for months. It is not easy
to make everybody happy with the new text; nonetheless, we have been
working to reach as wide a consensus as possible. I hope the text will
be disseminated to the NGOs and political parties in the near future,"
Cicek told Today’s Zaman.

Yozgat deputy Bekir Bozdað is of the same opinion as Cicek. Speaking
to Today’s Zaman, he said? "The basic problem is how judges will
interpret it. During the negotiations on this article in Parliament,
Supreme Court of Appeals President Osman Aslan stated that the judges’
verdicts are worth 95 percent while the law is worth 5 percent. The
text proposed by the NGOs is worse than the former Article 159. If
we revert to the past, won’t they ask ‘Why have you done this?’ We
face these problems because the judges make decisions based on their
world view. The real problem in Turkey is the quasi-independence
of the judiciary. Judicial independence entails independence from
preconceived views. As long as they are not independent of their own
ideologies, there will be many such trials."

Bozdað finds the term "Turkishness" in the text proposed by the
NGOs meaningless, "The word ‘Turkishness’ is the same as the words
‘Turkish’ or ‘Turk.’ This is so in the practice of the Supreme Court
of Appeals. Under Article 66 of the Constitution, ‘Turkishness’
is considered synonymous with ‘Turkish citizenship’ and, in the
final analysis, the judges are expected to construe the articles
[accordingly]. If efforts to transform the judges rather than the
politicians were made, more progress would have been made. Indeed,
some articles in the laws of several European countries have heavier
provisions, but fewer prosecutions are launched. Do people in these
countries not speak or write? Yes, they do. But the judges do not try
everyone who speaks or writes. What should be done is to make 301 a
bit more concrete. Yet, even making it more concrete may not solve
the problem. The problem can only be solved by the judges," he said.

CHP is still against amendment

Those who are against amendment of Article 301 argue that the laws of
European countries contain similar provisions. They note that Articles
23 and 30 of the French Press Law, Article 496 of the Spanish Penal
Code, Article 90/b of the German Penal Code and articles 123 and 126 of
the Italian Penal Code contain similar provisions. The anti-amendment
camp is led by the main opposition Republican People’s Party (CHP),
CHP deputy for Nevtehir Orhan Eraslan, who is the party’s spokesman
on the subject, told Today’s Zaman that the text of the article should
remain as is.

"Not single letter of Article 301 should be changed. If you dare to
change it, it will result in a transfer of Turkey’s sovereignty. This
is like deleting the offense of rape from the TCK because all rapists
are killed in prison. Article 301 is not exclusive to Turkey; it’s
also in the Italian Penal Code, which even has the same wording
as our article. It is in the French Press Law and in the laws of
Germany, Austria, Spain, the Netherlands and Poland. At this stage,
not a single letter should be changed, let alone a consideration
of abolition. Everybody claims expertise on Article 301, and the
government’s hesitant behavior encourages the abolitionists. The
removal of 301 is not desired by the Turkish nation. It’s wanted in
Armenia, in the Armenian diaspora, in the US and in the EU. Article
301 is not an obstacle to freedom of expression. Belittling is not
an obstacle to criticism," he said.