There's No Such Thing as Free Speech in Turkey: And It's a Bad Thing, Too!

Responding to an article in yesterday's New York Times, it seems a good time to present information about freedom of speech, an issue that sometimes receives more attention in the foreign press than in national newspapers. The article touched on the case of political science professor Atilla Yayla who is on trial right now for insulting Atatürk. The article brings to light recent concerns about the number of increased prosecutions of academics, journalists, publishers, politicians, and ordinary citizens under Article 301 of Turkey's now infamous penal code. Although Turkey is in the midst of attempting to reform Article 301 and release itself from the pressure of human rights groups, any attempt to pass meaningful reform of the article and especially to eliminate it completely will be hard fought.

President Gül has likened the negative publicity stemming from Article 301 to that received following the portrayal of Turkish prisons in the 1978 film Midnight Express and the exposés that followed. However, for nationalist politicians who garner a great deal of support among Turkish citizens, Article 301 and other articles in the Turkish Penal Code (TCK) are necessary to maintaining law and order and preventing people from defaming the state. Many of these people argue that chaos would ensue if speech were not to be checked and claim the law is necessary to keep at bay Turkey's "internal enemies." Ask self-idenitifed nationalists how they feel about 301 and the response one gets usually goes something like this: "People can't just go around insulting each other, the state, and its institutions! How dangerous!"

Article 301 dates back to the 2004 revision of the Penal Code and became subject to criticism by human rights activists as nationalist prosecutors began to use the speech code as a means to promote nationalist causes (see Jan. 19 post). The media monitor and news service BİA-Net documented an increase in the number of prosecutions under restrictive speech codes: from 157 in 2005 to 293 in 2006. Although Article 301 gets much of the attention, there in fact exist numerous articles in the TCK that restrict free speech and several more not in the penal code under which citizens can be prosecuted for expressing opinions with which others—namely the zealous prosecutors aforementioned—disagree. An example of the employment of one of these many other codes is the case of Atilla Yayla. The academic is being prosecuted under a 1951 law outside of the penal code that makes it illegal to insult Atatürk, "the Immortal Leader."

That these cases can be so easily filed can be attributed in part to the structure of the judicial system. Under Turkey's legal system, any individual may bring a complaint to a prosecutor and the complaint must be investigated. Further, it is not at all difficult for zealous prosecutors wanting to make a political argument, score political points, or persecute a particular individual to do so by applying the vast amount of authority they have under the auspices of the system and the ambiguity of the speech codes. Thus, the speech codes can easily be wielded as political weapons and often are.

No particular person or group seems immune from prosecution as cases have been filed against individuals from a variety of ideological backgrounds—from Marxist to Islamist to secularist to Kurdish. This said, the speech codes are most often used against individuals who come into conflict with the members or ideas of the Kemalist old guard who insist that the codes be preserved. Since this stalwart political establishment is well-positioned throughout the judiciary, the speech codes are another way by which Turkey's political elite is able to retain control.

Hegemonic in purpose, the speech codes have a chilling effect on free speech and independent thought and in some ways have become so routine that many Turkish citizens think little about them. This is the principal reason why cases rarely get much attention in the foreign press and often receive no attention at all unless the person being tried is famous or the EU involved. If someone is being tried under a speech code, she or he must have done a very bad thing indeed. For some of the Turks with whom I have talked, the very fact that prosecutions even happen are just more proof that Turkey has internal enemies who seek the destruction of the state. For three in four people I have asked, the codes are also about maintaining order and a quite normal part of keeping the state-society relationship stable. One young woman I asked told me that without some restrictions on speech, demagogues would be able to stir furor with Turkey's uneducated masses, causing discord in society and potenially even destablizing the government. This is very much in-line with the informal Kemalist belief that the state á la the enlightened elite know best. Perhaps the best example of this point of view is CHP's election slogan in the 1920s, "For the people, despite the people."

To examine the codes in greater depth, let's start with Article 301. Under Article 301, it is a crime to "insult" or "denigrate Turkishness" (depending on the translation of the TCK). If found guilty, this crime carries a prison sentence of six months to three years in prison. If the person is a member of the judiciary or military or security services, then the sentence is from six months to two years and if the crime is committed outside of Turkey, the sentence can be extended to three years. Although Article 301 contains a provision that denigration should be separated from criticism, this standard is obscure and unable to be applied in any meaningful or consistent manner. Therefore, the ambiguity of the code accounts for the arbitrary nature in which it is applied.

Other articles of Turkey's penal code that restrict speech include Article 216 under which it is a crime to incite hatred or hostility among the population, Article 267 under which it is a crime t commit slander (these are criminal, not civil cases), Article 277 under which it is a crime to influence the judiciary during an ongoing court case (this is frequently wielded against journalists), Article 285 under which it is a crime to violate the confidentiality of investigations, Article 288 under which it is a crime to influence the result of a fair trial, Article 318 under which it is a crime to discourage individuals to serve in the military, and according to legal experts, a myriad of up to two dozen more. Particularly egregious is Article 305 under which it is a crime to engage in acts that run counter to fundamental national interests. Who decides which national interests are fundamental and what acts run counter is left to the prosecutor and the court.

Human rights groups like Amnesty International and Human Rights Watch have continually criticized these codes as violations of basic human rights. As a State Party to the International Covenant on Civil and Political Rights and to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Turkey is in violation of international law.

Although proponents of the speech codes often claim that European countries have similar restrictions, the codes are rarely applied whereas in Turkey they are quite commonplace and built into the structure of the post-1980 regime. Of particular concern, in the past two years the number of prosecutions has increased. According to a BİA-Net, the number of cases increased from 157 in 2005 to 293 in 2006. In regard to cases filed under Article 301, the number rose from 29 to 72. 2007 saw a similar case load to 2006. Human Rights Watch has done an excellent job documenting this trend and included their findings in an April 2007 letter to Prime Minister Erdoğan. The increase is likely die to an increase in nationalist sentiment and is probably largely a response to the diminishing power of the Kemalist old guard.

Speech codes also jeopardize Turkish accession into European Union and have come under particular scrutiny by members of the European Commission. In its November progress report, the Commission again criticized Turkey's restrictions on free speech as human rights violations (pp. 15-16). The Commission also expressed concern over the increase in the number of cases being tried by zealous prosecutors.

Apart from Yayla, notable prosecutions against academic include cases against well-known intellectuals like Hrant Dink (who was convicted, but whose sentence was suspended), Orhan Pamuk (who was acquitted in January 2006), and Elif Şafak (who was acquitted in September 2006). While several other individuals from across the spectrum of Turkish society have been tried, these cases attracted the most attention in Europe and throughout the world. Cases have also been brought against publishers. Two notable examples are prosecutions made against individuals who published the work on Noam Chomsky and Richard Dawkins. However, perhaps one of the most tragic elements to thse prosecutions is that so many of the cases never receive publicity. People taking part in politics and expressing dissent on a more quotidian level rarely receive press attention. Additionally, the speech codes are also used to repress the Kurdish population in the southeast.

However, the criticism of famous people like Pamuk has indeed brought international pressure on Turkey to the broiling point as the government has announced that it will soon introduce a legislative proposal to amend Article 301, the code that has become by and large the most infamous. The news is greeted with welcome ears by human rights/democracy organizations like Freedom House, but the recently released draft of the proposal has been continually delayed as criticism mounts from intellectuals who demand more meaningful and urgent reform that half-steps simply will not do.

The proposal submitted to Parliament today does not even come close to constituting a half-step and it is likely to gravely disappoint those hoping for serious reform. The proposal was submitted by Justice Minister Ali Şahin and contains provisions to change the offense from one of denigrating "Turkishness" to one of denigrating "the Turkish nation." The only two real reform marked by the proposal is a requirement that the justice minister sign off on all Article 301 prosecutions, a measure that will hopefully provide a check on the zealous prosecutors, and a reduction of the maximum prison sentence allowed under the statute from three to two years. This is significant in that the TCK allows sentences of two years or less to be suspended.

Despite disappointment in the proposal's meagerness, it will likely prove very controversial. The drafting divided even AKP members and cabinet ministers, some of whom are not committed to Article 3o1 reform and share the opinion of the nationalists. Due to this controversy, the proposal was submitted to parliament not by the party, but by Şahin. It arrived in the parliamentary Justice Committee where it will then proceed to the General Assambly after discussion.

One sticking point to note in the drafting process is a conflict as to whether the justice minister or another institution should be granted the authority to approve the prosecution of 301 cases. According to Today's Zaman, State Minister Cemil Çiçek is said to have disagreed with Şahin, insisting instead that approval should be sought through a committee of at least eleven people. Çiçek also argued that changing the phrase "Turkishness" would make the law even more cumbersome.