TCK FULL OF ANTI-FREEDOM MINEFIELDS APART FROM 301
Today’s Zaman
April 10 2008
Turkey
Turkey is about to amend Article 301 of its penal code, seen as a
major obstacle to free speech, but dozens of similar articles that
constitute a potential threat to free expression and still others that
can easily be manipulated by overzealous judges to restrict freedoms
remain in the penal code, legal experts have emphasized.
Article 301 of the Turkish Penal Code (TCK), which criminalizes the
ambiguous concept of "Turkishness," has long been criticized by
domestic and international rights groups as well as the European
Union for stifling freedom of speech. The government has pledged
for more than a year to amend the controversial article, used by
nationalist-minded prosecutors to take hundreds of intellectuals
and journalists, including Nobel Literature Laureate Orhan Pamuk,
to court for insulting Turkishness.
Even if Article 301 was removed entirely, as many experts suggest would
be the only viable solution to the problems it creates, others would
fill its place. A key example of this is Article 216, which defines
"inciting people to hatred and hostility" as a crime. Erdal Doðan,
a lawyer for the late Turkish-Armenian journalist Hrant Dink —
who was shot dead by an ultra-nationalist teenager in 2007 after
a conviction under Article 301 — notes that this article, which,
in essence, is an anti-racism article, is frequently exploited by
prosecutors to stifle freedom of speech. In fact, there are already
many cases on 216-related charges; however, the article is in the
background since none of these have involved high-profile individuals
as in the 301 cases.
Similar to 216, Article 288 of the code, which criminalizes making
public declarations about an ongoing court case, is frequently abused
by ultra-nationalist prosecutors. .
"When Hrant was facing charges on 301, they filed against him under 288
for a comment he made about his own case," Doðan remembers emphasizing
at the time that an article initially intended to protect the defendant
had actually been used against him.
Article 288 could also be potentially harmful to judicial
transparency. Doðan points out, metaphorically speaking: "The judiciary
itself commits murders. This article prevents discussion on those."
The eighth paragraph of Article 220, which criminalizes "propagating
an outlawed organization," Diyarbakýr Bar Association head Sezgin
Tanrýkulu emphasizes, has frequently been used against declarations,
statements and remarks made by Kurdish politicians. He says Article
222 of the TCK, which criminalizes violating a 1925-dated law on the
Turkish alphabet, is simply grounds for prosecuting an individual
for using the letters "q," "x" and "w," which are not included in the
Turkish alphabet. Although these letters are frequently used in many
publications in Turkey printed in different languages such as English
or French, they have been known to cause their publishers trouble
if they are part of a text in Kurdish. Tanrýkulu said the seventh
article of Turkey’s Anti-Terrorism Law is also frequently abused by
prosecutors and used to prosecute people of Kurdish ethnicity. "At the
end of the day, it is a matter of mentality," Tanrýkulu said. "If the
prosecutors and judges are left the slightest power to take initiative,
the laws are almost always used against rights and freedoms."
Doðan agrees; he notes that even if all these problematic articles
were removed, the record of the Turkish judiciary in respecting
freedom of expression as a basic right would not significantly
improve. "The judiciary needs a radical shakeup," he said. Stating
that the primary instinct of the judiciary in Turkey is to protect
the state, Doðan noted, "The one single ideology, the basis and
the aim of Turkish prosecutors and particularly judges should be
the universal principles of law." To make his point about how well,
or how poorly, Turkey is doing in terms of international laws and
standards, Doðan notes that the highest number of cases Turkey was
convicted on in the European Court of Human Rights were on charges
of violating article six of the European Convention on Human Rights,
which covers the right to fair trial.
Another major obstacle to freedom of speech is Article 318, the crime
of "discouraging the public from serving in the army." Umit Kardaþ,
a retired military judge, notes that there are a significant number
of court cases against individuals under 318, which came under the
spotlight only when singer Bulent Ersoy got in trouble with it for
stating her belief that a military operation against the separatist
Kurdistan Workers’ Party (PKK) in northern Iraq was not working to
resolve the issue and that Turkish troops were dying in vain. "You
could be charged for defending conscientious objectors," Kardaþ said.
The phrase is so vague that any anti-military remark could be deemed
an attempt to discourage the people from military service, he noted.
Ambiguity, self-censorship and social reflection
Most of the time, the ambiguity of the penal code article is the
problem. Professor Vahit Býcak, who teaches criminal law, says: "The
penal code has to be absolutely clear. It is wrong to put in unclear
clauses and thereby put the ball in the court of the prosecutor or
the judge."
Lack of clarity itself is a threat to democracy, Býcak, who recently
provided the only translation of the TCK in the English language,
warns emphatically. "Ambiguity in the penal code forces a person to
impose self-censorship, which keeps free opinions from emerging. In
a democracy, those who think differently should be encouraged. In a
society which limits its expression, the possibility of creating ideas
that would help the society move forward is rather weak," he noted.
But it is likely that Article 305 would be the one receiving the most
discussion if 301 didn’t exist. The article criminalizes "engaging
in deeds against fundamental national benefits." Similarly ambiguous
is Article 304, which criminalizes "provoking foreign officials to
declare war against the Republic of Turkey or insult it." Doðan says
if there was no 301, 305 could easily be used to cover most of the
hundreds of individuals who have been tried under 301.
Part of the problem lies in the Turkish public, which is inclined to
blow things out of proportion, including opinions that normally are
not insidious or even insulting. According to Býcak, we as a nation
are simply "offended too easily." He notes that this is not very
helpful in fostering a democratic environment. "Opinions that one
does not agree with should be talked about freely," he notes.
Kardaþ agrees that some of the fault ties with our inferiority complex,
both as a nation and as individuals. Most of the 301-related cases
were based on remarks that it would have been better to simply let go,
he says. "None of these needed to be turned into such huge issues. The
country is losing so much energy with these cases; we are draining
the energy from our authors and intellectuals," he says.
Penal code is only one-third of it
Býcak, who had previously made a list of all articles open to arbitrary
interpretation, says in addition to the articles mentioned earlier,
Article 300, which criminalizes "denigrating symbols of the sovereignty
of the state," is a potential mine that could be detonated by a
prosecutor or a judge who is excessively enthusiastic about their
patriotism. And such cases are abundant, Býcak notes. In a court
ruling, the crescent and the star drawn on train carriages was taken
as an item symbolizing the sovereignty of the state. In another case,
a newlywed couple got in trouble when a Turkish flag on their car
fell off the bride’s car as they drove.
Other articles of the TCK whose wording is open to manipulation,
twisting and using for purposes that had not been intended by
the lawmaker are Article 309, which criminalizes "attempting to
overthrow the regime set forth by the Republic of Turkey," Article
311 under which "attempting to overthrow by violence the Parliament
of the Republic of Turkey" is defined as a crime, Article 299, which
criminalizes "uttering insults against the president," Article 323
against "printing false news stories" — one that can be exploited
against the freedom of the press at any time — Article 341 against
"denigrating the flag of a foreign state," Article 115 that prevents
"declaration of religious, social political and philosophical beliefs,
Article 263 against "education in violation of the law," Article 125
which regulates "crimes against dignity," and Article 217 against
"provoking people to disobey the law."
Býcak is quick to note that only one-third of the crimes defined under
Turkish law are cited in the TCK. "There are many other codes and
they all define hundreds of acts as crimes. Two-thirds of the crimes
defined in the law are not found in the penal code," Býcak stated.
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