TURKEY DEBATES FREE EXPRESSION OF THOUGHT
Goksel Bozkurt
Turkish Daily News
Oct 1 2006
Turkey is debating freedom of thought and its expression as
intellectuals and politicians confront each other over Article 301 of
the Turkish Penal Code (TCK); intellectuals are pushing for greater
freedom, while politicians are resisting their calls for the removal
of obstacles in the free expression of thought, the most notable of
which is considered to be Article 301.
Prime Minister Recep Tayyip Erdoðan has repeatedly stated that
the government might consider amending the article if the way it is
implemented makes an amendment necessary, but so far no concrete steps
have been taken. Leader of the opposition Republican People’s Party
(CHP) Deniz Baykal made his position clear when he told Erdoðan to
"knock on someone else’s door" if he seeks support for changing Article
301. Fearing that such a move could alienate voters, politicians tend
to resist the idea of changing the article.
How much progress can a society, containing intellectuals, artists,
writers and caricaturists that are unable to express themselves,
achieve? Don’t people living in Turkey deserve the right to think and
freely express what they think? Novelist Elif Þafak, who was tried
and speedily acquitted in a case under Article 301, says freedom of
expression must exist in Turkey not because somebody wants us to
have it but for our own people. What can a writer produce if they
can’t express what they can imagine? If they do manage to produce
something, who would like it? Can thought be restricted? Should
non-violent thought and its expression be free? How far are the Turkish
people free to think and express their thoughts? Who will draw the
boundaries? Would the Republic of Turkey be harmed if freedom of
expression was fully ensured? Would the integrity of the state be
endangered then?
These are the questions that surround the Article 301 controversy in
Turkey. Intellectuals, the European Union, Amnesty International and
other human rights organizations are against Article 301. It would be
useful to have a look at certain data and laws regarding freedom of
expression. In a recently released study, the Turkish Human Rights
Foundation identified some 14 articles in the TCK, including 301,
that could potentially restrict freedom of expression.
The lists consists of the following: Article 84 — regulating
encouraging and aiding suicide; Article 125 – on denigrating honor,
dignity and esteem and insulting a public official; Article 132 —
regulating violation of privacy of communication; Article 134 —
regulating privacy of personal life; Article 215 — regulating
praise of crime and criminal; Article 216 — regulating incitement
of hatred and enmity;Article 218 — on crimes committed against
public peace through the press;Article 285 — regulating violation
of confidentiality of investigation;Article 286 — regulating
audio and visual recording of the proceedings of investigation and
prosecution;Article 288 — on attempts to influence fair trial;Article
299 — on the crime of insulting the president;Article 301 — on
insulting Turkishness, the republic and the organs and institutions
of the state;Article 305 — regulating activities against fundamental
national interests;Article 318 — regulating the crime of discouraging
people from military service.
96 people faced trial under 301:
It is clear that there are many articles that restrict freedom of
expression, but today debate mostly centers on Article 301. The same
study says that as of Sept. 18, 2006, some 96 writers, publishers,
journalists and intellectuals have been brought before a court under
Article 301. A closer look at 301 reveals that a similar provision
was included in the penal code in 1936, amended seven times, finally
corresponding to Article 159 of the previous penal code.
Under Article 301, a person who "openly insults" Turkishness, the
Turkish Republic or the Turkish Parliament faces between six months
and three years in jail. A person who openly insults the government
of the republic or the judicial organs of the state, military or
police department could be imprisoned for between six months and
two years. If the crime of insulting Turkishness is committed by a
Turkish national in a foreign country, the punishment is increased
by one-third. The article says that expression of thought for the
purpose of criticism does not constitute a crime.
Prosecutors decide who should face trial under Article 301. They
determine whether statements, writing or actions should be prosecuted
under the article and initiate the trials.
Elif Þafak trial:
Those who have been brought before the court under 301 have included
several famous figures. The latest prominent court case under Article
301 was against novelist Elif Þafak. The court acquitted Þafak at the
first hearing of the case, in which she stood trial for insulting
Turkishness in her novel "The Bastard of Istanbul" ("Baba ve Pic"
in Turkish), as the judge ruled that no criminal act had been carried
out and that the evidence against her was insubstantial.
Speaking in an interview with the TV-channel CNN Turk, Þafak
commented on her acquittal: "Such cases will never end as long
as Article 301 remains. One case will be closed but another will
be opened. Turkey will waste its energy on trials. It will face
difficulties abroad. Therefore I cannot say ‘it’s over’ until legal
changes are made. One should not associate trials under Article 301
with individuals. To believe in freedom of expression is to believe
in respect for the thoughts of people that think differently."
Victims of 301:
Possibly due to election concerns, politicians are failing to show
the courage to alter Article 301, which went into force in June 2005.
Meanwhile, the number of victims of the article is growing daily.
Many people, including renowned intellectuals, have been tried under
Article 301; some have been convicted. The Supreme Court of Appeals
recently upheld a six-month suspended imprisonment for Armenian
Turkish journalist Hrant Dink. An attack by nationalist protestors
against novelist Orhan Pamuk in the court building during one of
the hearings in his trial under Article 301 was widely covered by
international media.
Some of the journalists and writers who have been tried or convicted
under Article 301, or Article 159 in the previous penal code, are
as follows: Orhan Pamuk, Engin Aydýn, Serkis Saropyan, Hasan Cemal,
Ýsmet Berkan, Burak Bekdil, Haluk Þahin, Murat Belge, Erol Katýrcýoðlu,
Ferhat Tunc, Ýlhan Selcuk, Ýbrahim Kaboðlu, Baskýn Oran, Emin Karaca,
Zulkif Kýþanak, Fatih Taþ, Aziz Ozer, Erkan Akay, Ersen Korkmaz,
Necmettin Salaz, Mehmet Colak and Ýrfan Ucar.
Armenian conference entails court case:
To elaborate on some of these cases, Murat Belge, Hasan Cemal, Erol
Katýrcýoðlu and Haluk Þahin faced trial for "insulting the judicial
organs of the state" because of their comments in newspaper columns
about a court decision banning a conference on Armenian issue.
Although the trial ended in acquittal, the four columnists have not
yet been cleared of charges since the prosecutor appealed the court’s
decision. A prosecutor has demanded up to four-and-a-half years in
jail for Radikal’s columnist Murat Yetkin for criticizing the Pamuk
case in an article. Hrant Dink, editor in chief of Agos daily, was
tried for insulting Turkishness for comments on the alleged genocide
of Armenians and was sentenced to six months in jail, although the
sentence was suspended.
Acquittal in ‘insulting military’:
In his column, journalist Rahmi Yýldýrým criticized retired Gen.
Tuncer Kýlýnc for borrowing $150,000 from a contractor doing business
with the army. An Ankara court of first instance ruled that elements
of the crime of "openly insulting the Turkish Armed Forces" did not
exist. The court said Yýldýrým’s criticism of the army officials’
acts were tough, offending and disturbing but underlined that such
expression of thoughts should be tolerated in a pluralist society.
The court also said it considered the freedom of expression to be
more important than the reputation of the Turkish Armed Forces. The
Ankara Chief Public Prosecutor’s Office objected to the ruling and
is currently appealing the verdict.
Writer Mara Meimarid also faced trial for her book, "Wizards of Ýzmir"
("Ýzmir Buyuculeri"). The book was published in October, 2004 and the
trial came one year later in 2005. Some 50,000 copies of the book,
which tells the story of Greeks, Armenians, Turks and Jews living in
19th century Ýzmir, have been sold in Turkey and Greece.
Translators, too:
The translators of U.S. writer John Tirman’s "Spoils of War: The Human
Cost of America’s Arms Trade" were also brought before a court in an
ongoing trial under Article 301. The prosecutor prepared an addition
to the indictment to charge the book’s translators Lutfi Taylan Tosun
and Aysel Yýldýrým in the case against publisher Fatih Taþ. Claude
Edelmann of Amnesty International called the case "unprecedented." The
prosecutor is demanding up to three years imprisonment for the two
translators.
What is Baykal saying?:
The CHP’s Baykal strongly opposes a change in Article 301 of the
TCK. Underlining that the ruling Justice and Development Party (AKP),
which enjoys an overwhelming majority in Parliament, does not need the
support of any other party to change the article, Baykal commented in
a speech this week: "The prime minister is looking for an accomplice
to share the shame of allowing insults against Turkish identity in
Turkey. My answer is, ‘knock on someone else’s door’."
Baykal noted that provisions similar to Article 301 existed in
European countries such as Italy, France and Germany and added:
"We are almost asked to apologize because we are Turks. We won’t
apologize, we are proud of this."
What is Erdoðan saying?:
Prime Minister Erdoðan says judicial case law should be established
on Article 301-related cases and states that the article could be
amended if such a need arises. "If legitimate rights and freedoms
are restricted, necessary changes would be made in the law," he said
this week. Erdoðan cautiously added: "There are certain circles which
confuse criticism with insult. We cannot say ‘yes’ to a certain segment
having limitless freedom. These freedoms should not give any person
the right be insulting."
A tool for domestic politics?:
An interesting outcome emerged from the Þafak trial, when it was
revealed that politicians were also happy about her acquittal. Many
politicians, mostly within the ruling AKP, were pleased after the court
decision last week. Erdoðan phoned Þafak a day before the hearing and
later expressed his pleasure when the court ruled for acquittal. The
court’s ruling was met with a mixed reception within the CHP, and many,
including Þafak, said the CHP’s reservation on the matter was odd.
But why does Article 301 remain intact when the majority of
parliamentarians are happy at Þafak’s acquittal?
According to observers, the answer lies in the approaching election
period in 2007. At a time when Turkey is heading for elections,
say observers, no politician would brave amending an article that
punishes insulting Turkishness. Therefore, any substantial changes
in Article 301 are highly unlikely in this period, and changes,
if there are any, are bound to be cosmetic. Opposition parties are
openly against changing Article 301 and the AKP is avoiding it,
fearing that it would be attacked by the opposition for scrapping
punishment for insulting Turkishness. Indeed, the CHP is already
doing so and. Thus, amendments to Article 301 have unfortunately
fallen foul of the machinations of domestic politics.
This argument was seemingly proved correct when Justice Minister Cemil
Cicek suggested in televised remarks this week that the opposition
would use any step in direction of amending Article 301 to score
political goals.
"If Article 301 is lifted, then we will be faced with a regime
debate. There are proposals to take out ‘Turkishness’ from the law.
But wouldn’t some people then ask us if we are ashamed of being
Turks?" asked Cicek.
Debates over Article 301 look set to continue in the coming period.
Barring a really big surprise, Turkish intellectuals, writers,
thinkers, activists and others will continue to exercise their right
to free expression in the shadow of Article 301.
–Boundary_(ID_zadmeDctDw7s+kTT9y0s2w)–