CICEK: EU OFFERS TURKEY AN OUT OF WEDLOCK RELATIONSHIP
Ercan Yavuz Ankara
Today’s Zaman, Turkey
Feb 23 2007
INTERVIEW
Justice Minister Cemil Cicek
Justice Minister Cemil Cicek, who has recently sharpened accusations
of bias against the EU, maintained his critical line and said the
27-nation bloc wanted a relationship out of the wedlock with Turkey.
"Turkey is a country that can make the EU a strategic power," he said
in an interview with Today’s Zaman. "The EU does not refute this fact;
it tells Turkey ‘let’s live together but not tie the knot.’ We cannot
have relations on such a slippery ground."
Cicek, facing criticism for dragging his feet on amending the penal
code’s controversial Article 301, also came up with a fresh proposal
on how the legislation should be changed and said a mechanism of
permission that would require relevant politicians’ go-ahead for
prosecutions could resolve the problem.
Cicek said an alternative formula could be introduction of a board
of experts who would provide a pre-trial assessment of whether a
specific expression of view constitutes criticism or insult and whether
prosecution of that expression is beneficial to the country or not.
"In case of charges of insult against the Parliament, the Parliamentary
speaker’s permission should be sought. Similarly, the defense minister
should be asked for permission for prosecution in regard to charges
of insulting the Turkish Armed Forces," he said.
"If the concerned institution is the government, then permission from
the justice minister or the prime minister may be required." Article
301 makes it a crime to insult state institutions and "Turkishness"
and foresees up to three years in jail for the offense. Cicek said
the cases concerning insulting Turkishness could be referred to the
justice minister for pre-prosecution permission.
Cicek has long resisted prompt changes to Article 301, which domestic
critics and the European Union say restrict freedom of expression,
insisting that the problem stems from implementation — not the law
itself — and that European countries also have similar laws banning
denigration and insult. Dozens of Turkish intellectuals, including
Turkey’s Nobel winner novelist Orhan Pamuk, faced trials for "insulting
Turkishness" under Article 301. Turkish Armenian journalist Hrant
Dink, who had also been tried and convicted under the same article,
was gunned down in Ýstanbul on Jan. 19 and calls for amendments to
the law have been stronger than ever since then.
The justice minister claimed amending Article 301 was not a matter
of concern for the public and said it was sought by a marginal,
politically-motivated camp which does not have close ties with
the public.
Lashing out at the pro-amendment camp, he also said those who attack
the law get "prize and fame" in return, without elaborating. The
minister declined to offer a date when possible amendments to Article
301 could be debated in Parliament and said what was important was
to secure a social consensus on this politically divisive issue first.
Has the EU made any request for amendments to Article 301?
Amendments to Article 301, as well as many other issues, are not
directly demanded by the European Union. There are certain marginal
and ideological groups in Turkey that do not have proper ties with the
public. Most of the issues said to be demanded by the EU are issues
that these circles are afraid to raise on their own. They are trying
to put pressure on the EU so that it would raise their demands. The
previous government led by Bulent Ecevit made an amendment in the
text of Article 159 of the previous penal code by introducing a
phrase reading "expression of views that contain criticism cannot
be considered as an offense" in regard to a certain paragraph of the
article. When our party came to power, the EU said that this principle
must apply to the entire law, not to a certain part of it, and we did
so. In response, the EU expressed satisfaction, saying nothing was
left on the table. The EU countries have nothing to say to Turkey on
this matter since their own penal codes also contain laws similar to
Article 301.
Article 301 is not a matter of concern for the Turkish public. It is
a matter of concern for a group of people who consider themselves
as intellectuals but who do not carry the responsibilities that
intellectuals should. It is also a group of concern for those who in
Europe whose views on Turkey are shaped by these circles.
Are there articles similar to Article 301 in European penal codes?
The penal codes of all European countries contain laws making insult
and denigration a crime. I am pretty confident about this. Moreover,
our current legal system has been borrowed from Europe. When you
purchase a car from a dealer, you will also purchase its spare parts
from the same dealer. This is what we do. The legal provisions
concerning insult and denigration do not restrict freedoms, they
ensure that these freedoms will be enjoyed in a more mindful manner.
Freedom of expression does not mean irresponsibility and freedom to
insult. In no legal system can freedoms be unrestricted; no legal
system sanctions insult and denigration.
Why is the debate about Article 301 so long-lasting in Turkey?
When the debate on Article 301 first began, we observed that the people
and groups involved in the debate were taking positions according to
their ideological stances and without having proper information on the
issue. Those who acquire a stance without having proper information
heat up the discussions. In the early stages of the debate, they were
asking where Article 301 came from; it has existed since 1926 in the
form of Article 159 in earlier penal codes.
The name changed when we amended the penal code. But it took a
month for Turkey to clear this up. In the later stages of debate,
it was understood that this article was not unique to Turkey. Yet,
some people continued to twaddle. Then, it was argued that although
there are articles similar to 301 in Western countries, they are not
implemented in practice. Within the last month, it was understood
that it is implemented in many Western countries as well.
Why, in your opinion, has the problem deepened?
Let’s try to reveal the origin of the problem. If you argue that the
Western countries do not have similar articles, then what you have to
do is to abolish this article. If you say it is unique to us, well,
this is not the case. Penal codes are not archeology books; articles
that cannot be implemented in practice are not put in them. When we
talk about penal codes, we talk about offenses and corresponding
penalties. Every country has different ways to punish a certain
crime; some bring imprisonment while others provide for fines. What
is important is whether a particular act constitutes an offense or
not. In Turkey, debates take place on a political, not legal, setting.
—————————————- —————————————-
‘Attacks on 301 bring fame and rewards’
You receive the most criticism in the debate over Article 301…
Some say it should be kept as it is, while other say it must change.
Those who say it must change are internally fragmented. And when the
debate erupts, some people change their sides immediately in the hope
of getting praises and "well-done" phrases. Now, everyone tries to
put the blame on the minister of justice. They say the minister can
play the bad cop. That’s fine, I’m ready to take it for the sake of
the nation. But others must calculate outcomes of steps taken in the
hope of receiving praises, too. I am of the view that legal changes
can’t resolve the problem. In Turkey, some circles see attacks on
Article 301 as an advantageous act; they get fame, they get rewards.
As long as this is the case, the problem is bound to persist.
Does this mean it cannot be amended?
Every law can be amended. Indeed, this particular law has been amended
seven or eight times. It is not legally correct to declare an already
amended law as unchangeable. But the question is what will change
when we change it (the article). None of the proposals submitted by
nongovernmental organizations or other circles up to now will produce
the results they expect to get from their proposals.
This is because the real problem does not derive from the law itself.
The problem stems from implementation. There is a thin line between
what is insult and what is criticism. Turkey is not accustomed to
discussing, it is accustomed to insulting. If we are to introduce
any amendment, we must act with reason and calm.
——————————————- ————————————-
Permission mechanism
In your opinion, what is the most reasonable amendment?
The most reasonable option is to reintroduce a mechanism of permission,
under which prosecutors would need permission before launching a
court case. If you also introduce several steps within the mechanism,
I believe the problem will be resolved. My personal opinion is that
the practice of obtaining permission from the justice minister as
provided in the former Article 159 is not appropriate.
The burden of such a complicated issue should not be placed on the
shoulders of a single minister. If you require permission from a single
minister, he will court cases against his opponents while obstructing
those of his advocates. Poised between two fires, the justice minister
will eventually lose credit. For this reason, the burden should be
distributed. It should be distributed to the politicians that are
in charge of the institution concerned. For instance, in case of
charges of insult against the Parliament, the Parliamentary speaker’s
permission should be sought; similarly, the defense minister should be
asked for permission for a court case involving charges of insulting
the Turkish Armed Forces. The interior minister may decide when the
issue concerns the security forces. If the concerned institution
is the government, then permission from the justice minister or the
prime minister may be required. For instance, the cases concerning
‘"Turkishness" may be sent to the justice minister for permission.
Is there any other solution?
As a second alternative, you may set up a pre-trial assessment
board, which will decide whether an act or a statement is considered
an offense or whether launching of a trial will be beneficial to
the country. In this case, the responsibility lies heavily on the
Court of Appeals. It is the Court of Appeals which will fine tune
the distinction between criticism and insult. The Court of Appeals
must form a solid case-law on this subject. Otherwise, to merely
introduce legal regulations will not be a solution to this issue. I
think this should be a basis for discussion. I am not saying this is
what should happen.
When will the amendment proposal be introduced to the Parliament?
This issue has acquired more of a political nature than a legal one.
Whatever will be done should not be introduced as a "fait accompli."
We must try to secure a social consensus to the greatest extent
possible, and the new amendment should not lead to new controversies.
Otherwise, whatever we do will be of no use. If you amend Article 301,
then other articles will be brought to the agenda for amendment.
It is not important whether discussions center on this or that
article. What is important is to have no discussion. We must
contemplate well on this issue. This is what is done by the government
and AK Party.
What is the rate of conviction under Article 301 in Turkey?
The number of trials is less in Europe, but the number of convictions
is more. Out of 20 trials, 18 result in conviction. This implies that
the pre-trial assessment process is better in Europe. In Turkey, the
number of trials is more, but that of convictions is less. This is
an indicator of our poor and flawed investigation procedure. Trials
launched in connection with insulting Turkishness account for 11
percent. Those pertaining to insulting the security forces and the
Republic account for 33-34 percent and 25.8 percent respectively.
However, all discussions center on 11 percent.
Why do you think so many trials have been launched under Article 301?
This means that our courts do not assess the files properly. They
acquit defendants in the first hearing. If you will acquit a defendant
in the first hearing, why do you accept the case in the first place? As
the judicial organs have not adapted to the new system, such accidents
may occur.
The Turkish judiciary seems to have a pro-state stance. Do you
think so?
This statement has some merits. The judicial organs have established
traditions. We cannot expect them to change their mindset overnight
when a law is amended. When there were security concerns in the Cold
War era, their reflexes to protect the state were more powerful. In
the face of the threat from the former Soviet Union, freedoms were
considered secondary. This was reflected to the laws. Yet, this
is not specific to Turkey. Now, Turkish people seek freedoms more
strongly. On the other hand, the developments in Iraq, terror, and
the double standards of the EU against Turkey are cornering Turkey
and security concerns are again acquiring more weight than freedoms.
We are trying to establish a balance between two, and advocate that
security cannot be achieved without freedom and vice versa.
—————————————— ————————————–
‘EU confuses the minds of the judiciary’
Recently, you have been criticizing the EU rather strongly…
The EU has always assumed a double-standard regarding us. We have seen
it in many cases. Occasional contradictions in the judiciary stem
from the EU. The decisions given by European courts within the last
1.5 years create confusion in our jurists. On one hand, the EU wants
us to abolish Article 301. On the other hand, they convict those who
argue that sufficient examination has not been conducted concerning
the gas rooms. The people who state that the Armenian genocide is
not true are deprived of their rights to be elected.
Under these circumstances, how can Netherlands or France justify
their criticisms against us? If they advocate freedom of thought,
can these practices be explained? They exerted too much pressure on
us for the reduction of detention periods to four days. Yet, on the
other hand, they increased the detention period to 28 days following
the bomb attacks in London. What has changed to make you increase it?
The answer to this question must be elucidated well. For instance,
Doðu Perincek will be tried in Switzerland on Mar. 7. We will see
what is the outcome, we will see.
Will the PKK members who were seized in France and Belgium be
extradited to Turkey?
We have been informed concerning the militants in France and we
have requested information on the rest. We will examine their files
according to the names sent to us. To ward off any mistakes concerning
name similarity, we have requested detailed information.
As we receive this information, we will instruct the relevant
prosecution offices to find out if they have case-files of these
people. We have filed our request concerning the militants caught
in France. These are important developments, but I find them
insufficient. This is because we are acting with care considering
the developments in the past. We have been mistreated in the case of
Fehriye Erdal, Nuriye Kesbir, Remzi Kartal, Nedim Sever, and Metin
Kaplan. Only Kaplan has been extradited to Turkey, and we had to face
many obstacles before ensuring his extradition. For whatever reason,
no single separatist or terrorist has been sent back to Turkey. We
have not seen them extradite a single separatist to Turkey up to
date. We must see what will be the outcome. Dursun Karataþ and many
other militants can freely live there.
—————————————— ————————————–
‘EU wants out-of-wedlock relationship’
Is the issue of trust being aggravated in Turkish-EU relations?
Turkish EU bid is not an easy matter. There will be more trials and
tribulations in future. This is because Turkey is still a decisive
subject in the domestic politics of many EU countries. We do not want
to join EU with the special support or sponsorship of some circles.
We just want to enter EU straightforwardly. Without Turkey, the
EU cannot be a strategic power. It cannot become a problem-solving
power. It may become an economic power. This is the very reason why
the name of EU is not mentioned in the case of the Middle East as
the most problematic region of the world. The EU is non-existent in
the Palestinian-Israeli conflict. And the EU failed to introduce
a solution to the Bosnia problem in its very vicinity. Turkey is
the power which will turn the EU into a strategic power. You cannot
ignore these facts. And this is what is done by the EU. The EU does
not want a proper marriage with us. In a sense they say let’s have a
relationship but not tie the knot. We cannot establish relations in
such slippery grounds.
If the US adopts the genocide bill, how will the Turkish-American
relations be affected?
This is not good. In the final analysis, this is a historic event. It
requires academic studies. Today, the anti-American sentiments are on
the rise. What if in future some parliaments take decisions concerning
what happened in Iraq or Somalia or Vietnam? Will it be a realistic
course of action? What will this bring to the world peace?
Naturally, Turkey will not congratulate the US. On different occasions,
we have articulated our stance in this issue. I hope our US friends
will understand it.
Turkey has no worries. We have challenged the historians of the
countries who adopted similar bills to come to Turkey to conduct
researches. If they want the truth, they must come. If they had other
motives, we have fitting reactions. Turkey is ready to face its own
history. We invited Armenia to set up an academic commission, but they
proposed to establish a political commission in return. Turkey is not
escaping nor is it covering anything. Everybody should contribute
to the uncovering of the truth. This is what Turkey will do. If
the US Congress takes a politically-motivated decision, this will
unquestionably disappoint us.
–Boundary_(ID_ZpNlTxT/aV5wCvfjomJa9Q)–
From: Emil Lazarian | Ararat NewsPress