Der Spiegel Assesses Impact of 301 Reform

From yesterday's Spiegel Online:

ANKARA TO CHANGE ONE LAW, BUT OTHERS STILL MUFFLE DISSENT—Stefanie von Brochowski

This month, Turkey's ruling Justice and Development Party (AKP) plans to soften the controversial Article 301 of the Turkish penal code, which makes it a crime to "denigrate Turkishness." The law has been used to prosecute numerous intellectuals who dared to speak out about the 1915 Armenian killings during the last years of the Ottoman Empire, most notably Turkish Nobel Prize-winning novelist Orhan Pamuk and journalist Hrant Dink. A Turkish court later dropped the charges against Pamuk. Dink was found guilty and received a six-month suspended prison sentence. A nationalist teenager later shot and killed him.

The bill to amend article 301 was approved by a parliamentary committee on Friday and is set to go to the floor on Tuesday.

Late last year, the European Union warned Turkey that if it didn't move to cut or amend the law, its prospects for membership might be reduced to null. "It is not acceptable that writers, journalists, academics and other intellectuals ... are prosecuted for simply expressing a critical but completely non-violent opinion," EU Enlargement Commissioner Olli Rehn said at the time.

But even as the Turkish government moves to modify Article 301, legal experts are criticizing the fact that a number of statutes are still on the books in Turkey that pose a potential threat to free speech.

Article 288 of the penal code, for example, outlaws making public comments about an ongoing court case. Fethiye Cetin, formerly a lawyer for ethnic Armenian journalist Dink, said the law has been used by nationalist-minded judges to prevent public criticism of human rights violations. She also noted that, due to their ambiguity, a number of laws could be applied arbitrarily to silence dissidents. One of them, Article 305, makes it a crime to "engage in deeds that run counter to fundamental national interests."

"It’s all a matter of interpretation," Cetin told SPIEGEL ONLINE. "Some articles should be removed, but that’s not enough. What we need is for judges and prosecutors to believe in human rights and freedom of expression."

The AKP seems to be listening to criticism of Article 305. Huseyin Tugcu, a paliamentarian who is one of the founders of AKP and a member of the committee on foreign affairs, told SPIEGEL ONLINE on Friday: "The EU is right when they say that also Article 305 is open to a judge's interpretation." He continued: "At the moment, it is our main concern to improve Article 301 for our people, but if there will be problems in the future, we can also discuss Article 305. But at the moment, there aren't any such plans."

Other laws seen as obstacles to freedom of expression include Article 216, which makes it a crime to "incite people to hatred and hostility," and Article 318, which criminalizes "discouraging the public from serving in the army."

Ambiguous Statutes

Atilla Yayla, a political science professor at Ankara's Gazi University, said he fell victim to a similarly ambiguous statute. The academic caused an uproar in his country with a speech in which he allegedly insulted Turkey’s revered founder Mustafa Kemal Ataturk by calling him "this guy." Turkish media called him a traitor, extremists threatened his life and a court handed him a 15-month, suspended prison sentence in January.

Yayla was punished under the lesser-known statute 5816, which is meant to protect Ataturk's legacy but, according to human rights lawyers, is one of about three dozen laws that limit freedom of expression in Turkey.

The law most criticized outside Turkey, though, is Article 301, which in its current form makes insulting Turkish identity or the country’s institutions punishable by up to three years in prison. Like dozens of other Article 301 trials, the lawsuits against Orhan Pamuk and the late Hrant Dink were filed by ultra-nationalist Kemal Kerincsiz. The well-known lawyer was arrested this year in connection with an investigation into a shadowy gang accused of plotting to bring down Turkey’s moderate Islamist governing party.

AKP’s original proposed amendment of Article 301 would have required prosecutors to seek approval from the Turkish president before filing any charges under the law. But sources in parliament say that, under pressure from the opposition, the draft has been changed so that the Ministry of Justice would be responsible for approval. The new law would also lower the maximum prison sentence from three to two years and thereby open the way for the suspension of prison terms. In Turkey, a prison sentence that does not exceed two years can be suspended by the court unless the offender commits the same crime again. With AKP controlling more than 60 percent of the seats in parliament, the measure is expected to pass by a comfortable margin.

'This Amendment Will not Change Anything'

But lawyer Cetin, who represents Dink’s Turkish-Armenian weekly Agos, doesn't believe the change will make a difference for intellectuals in Turkey. She said that even the revised version of Article 301 could still be applied arbitrarily.

"It is obvious that this amendment will not change anything, because its substance hasn’t been changed," she said. "There are taboos, and when you break them the state reacts in a knee-jerk way. These taboos include the Cyprus conflict, the Kurdish and the Armenian issue. And this causes self-censorship, which is the most dangerous one."

Meanwhile, academic Yayla worries that the case against him will also cause more academics to censor themselves. "By looking at my situation probably they tell themselves ‘keep quiet, don’t get involved in critical issues, don’t speak out, keep your ideas to yourself’," he said.

Officials charged Yayla after he gave a speech in late 2006 at a youth conference in the coastal city Izmir, in which he noted that Turkey’s single-party era, from 1925-45, was not as progressive as the later years of the republic with respect to freedom of expression, religious freedom and rule of law. In his speech he also noted that the ubiquity of Ataturk statues and pictures in Turkey might astound foreign visitors. The local newspaper reacted with a front-page story.

"There was a lynching campaign in the media against me," the soft-spoken academic told SPIEGEL ONLINE by telephone from England, where he teaches as a visiting professor at the University of Buckingham.

"After seeing the headline of the local newspaper, called Yeni Asir, which declared me a traitor, I immediately understood that something bad would happen. But what happened exceeded my expectations."

Legal complaints, one of them filed by the Izmir Bar Association, prompted prosecutors to file criminal charges against Yayla. His university in Ankara initially dismissed him over the controversy, but it has since given Yayla his job back.


'Turkey Is not Yet Able To Handle Freedom of Speech'


Kadir Sivaci, an editor of Yeni Asir, remembers discussions about the case in the newsroom. "The things he said at the panel in Izmir, for example calling Ataturk ‘this guy’, offended us," he said, explaining the newspaper's initial reaction. But the editors of the daily soon regretted how they covered Yayla's speech.

"We understood our responsibility, and we understood how wrong it is to make people a target like this," he said. "Unfortunately it is very difficult for us to stay impartial on some sensitive issues. Turkey is not yet able to handle freedom of speech when it comes to subjects like Ataturk."

'There Will Be Chaos'

Many here believe that the legacy of Ataturk, who founded modern Turkey from the ruins of the Ottoman Empire and sought to make it a modern, secular state, requires special protection. To that end, even some journalists defend legal limitations like Article 301.

"Article 301 says ‘do not insult the state and its institutions.' It doesn’t say you cannot express your opinion," said Hayri Koklu, editor of the national-conservative daily Yeni Cag. "Shouldn’t there be laws in a democracy that protect against slander? If you abolish Article 301, there will be chaos."

Alper Gormus, former editor of the popular investigative magazine Nokta, said that in his case it was not merely the laws but also Turkey’s powerful military that interfered with press freedom.

Last March Nokta ran an article about an internal military document that categorized some journalists and organizations as being "against the army." The police, under instructions from a military prosecutor, raided the offices of the magazine shortly after the story was published, confiscated documents and copied computer hard drives.

"The magazine was stormed, and we lived with the policemen there for three days. They stayed overnight, too," Gormus said.

Turkish media organizations called the practice an affront to press freedom.

Shortly before the owner closed down the journal, it also published a story that claimed there had been a plot to stage a military coup in 2004 against the ruling AKP government.

Indicted for slander under Article 267 of the Turkish penal code by a retired navy commander named in the story, a court in Istanbul last Friday acquitted the former chief editor of Nokta on all charges. Meanwhile, Turkish media report that the "coup memoirs" mentioned in the story have been identified as files saved to computers of the former navy commander who sued Gormus.

Atilla Yayla wants to return to Turkey despite the issues that writers, journalists and intellectuals face. After the death threats he’s received, he only leaves the house with a police bodyguard when in Turkey.

"I have only one country," he said. "Turkey will change. I believe that in the mid-term and the long run we will have more freedom of expression. I am optimistic."