Criminal Appeals Court Rules Armenian Apology Cannot Constitute 301 Crime

A court of criminal appeals has ruled that organizers of the petition apologizing for the Armenian genocide (drafted in Dec. 2008) cannot be tried under Article 301. In Jan. 2009, six Ankara residents launched a criminal complaint alleging the violation constituted an insult to the "Turkish nation," still considered illegal under the auspices of the infamous article in Turkey's criminal code and despite cosmetic revisions made in April 2008. Click here for the article from Bianet. Click here for background on the 301 case and here for background on the petition in the context of intellectuals and activists tried since the 301 reform. For more information Article 301 generally, see past posts.

Under the reformed 301 Law, the Ministry of Justice, specifically the Directorate General of Criminal Affairs, must approve a criminal complaint before it becomes a case. My knowledge of Turkish criminal procedure lacking, I am assuming this happened with the petition organizers since the complaint ended up before the Sincan 1st High Criminal Court. It was at this stage, I believe, that the Ankara prosecutor's office decided to file the order of nolle prosequi, effectively dropping the case. However, the court in Sincan refused to drop the case, leading the Ankara procesutor's office to appeal to the case to the Court of Appeals 9th Criminal Office, which issued the ruling released this week. If I am wrong, I would most appreciate it if someone correct me.

Freedom of Expression for Armenia Apologists

From TDZ:

After completing its investigation, the Ankara Chief Prosecutor’s Office has concluded that there is no basis to prosecute Turkish intellectuals who collected signatures for a statement that contained a personal apology for the events of 1915, which Armenians claim constituted genocide.

The prosecutor’s decision was based on the idea that “in democratic societies, opposition views are under protection within the framework of freedom of thought,” the Anatolia news agency reported.

Prompted by six Ankara residents, the Ankara chief prosecutor launched an investigation into the apology campaign organizers and the people who signed the statement.

In their petition in early January, the six citizens based their arguments on the grounds established by the Turkish Penal Code’s (TCK) infamous Article 301, which has been used to prosecute several intellectuals, journalists and activists for “insulting Turkishness.” With the Turkish Parliament’s amendment of the disputed law last year, “insulting Turkishness” was replaced with “insulting the Turkish nation.”

For a background of the complaint, see Bianet, Dec. 1. Intellectuals who have spoken on the 1915 massacres, one of the most taboo subjects in Turkish society, have been frequent targets of Article 301 (see Dec. 7 post).

All major political parties have strongly condemned the petition, though President Gül publicly defended the freedom of expression of those who wrote, organized, and signed it. Erdoğan, for his part, squarely dismissed the petition as ludicrous, unnecessary, and offensive. For explanations from apologists as to why they felt inclined to sign the petition, see recent pieces by Şahin Alpay and Engin Parev, as well as the Spiegel's interview of Baskın Oran. For the petition in question, click here. For additional background, see Saban Kardaş in the Eurasia Daily Monitor.

Speaking Out About 1915

From The Guardian:

Academics and writers in Turkey have risked a fierce official backlash by issuing a public apology for the alleged genocide suffered by Armenians at the hands of Ottoman forces during the first world war.

Breaking one of Turkish society's biggest taboos, the apology comes in an open letter that invites Turks to sign an online petition supporting its sentiments.

It reads: "My conscience does not accept the insensitivity showed to and the denial of the Great Catastrophe that the Ottoman Armenians were subjected to in 1915. I reject this injustice and for my share, I empathise with the feelings and pain of my Armenian brothers. I apologise to them."

The contents expose its authors - three scholars, Ahmet Insel, Baskin Oran and Cengiz Aktar, and a journalist, Ali Bayramoglu - to the wrath of the Turkish state, which has prosecuted writers, including the Nobel prize-winning novelist Orhan Pamuk, for supporting Armenian genocide claims.

Bianet quotes further from the letter:

“What happened to the Armenians is not well-known; people are forced to forget it, and the subject is highly provocative. The Turks have heard this mostly from their elders, their grandfathers. But, the subject has not become an objective historical narrative. Therefore, today many people in Turkey, with all the good intentions, think that nothing happened to the Armenians .”

“The official history has been saying that this incident happened through secondary, not very important, and even mutual massacres; they push the idea that it was an ordinary incident explainable by the conditions of the First World War. However, unfortunately, the facts are very different. Perhaps there is only one fact and it is that the Kurds and Turks are still here, but the Armenians are not. The subject of this campaign is the individuals. This is a voice coming from the individual’s conscience. Those who want to apologize can apologize, and those who do not should not.”

Turkish writers and academics have long been targeted by zealous prosecutors for various statements made in connection with the 1915 massacres. In September, Ahmet Altan was targeted for an article entitled "Oh Brother" in Armenian. Another recent case involves Temel Demirer, in whose case Justice Minister Mehmet Ali Şahin said, “I cannot let someone call my state “murderer”. This is not freedom of expression. This is exactly what the crime of insulting the person of the state is.” Under new legal requirements for prosecution under Article 301, Turkey's most infamous legal restriction on freedom of expression among many, Şahin authorized Demirer's prosecution, virtually declaring him guilty. In June, Ragıp Zarakolu became the first convicted under the revamped law.

EU Links Freedom of Expression to the Kurdish Issue

From LALE SARIIBRAHIMOĞLU in TDZ:

Turkey's persistent and indiscriminate approach to cracking down on the expression of opinions that incite violence and the expression of non-violent opinions has finally prompted the European Union, of which Turkey aspires to become a member, to write for the first time in its yearly progress report specifically about the problem of freedom of expression in relation to the Kurdish issue.

"This year, the EU has used more specific language with freedom of expression over the Kurdish issue, as we have witnessed permanent harassment of Kurdish mayors in the southeastern region, despite the fact that they have been expressing non-violent opinions," said a Western diplomat.
The diplomat further stressed that they saw the need to encourage the people of the Kurdish-dominated Southeast to engage in the political process, through the free expression of their opinions to reduce the violence instigated by outlawed Kurdistan Workers' Party (PKK) terrorists.

In previous years, progress reports issued by the EU have expressed concerns with problems in freedom of expression as a whole in Turkey, but the 2008 Progress Report, which was issued on Nov. 5, for the first time, used "Kurdish issue" in relation to serious flaws in the area of freedom of expression.

For full article, click here.

Justice Ministry Allows for More 301 Prosecutions

From BIA-Net:

The Minister of Justice granted the permission for the prosecution of the ten university students under article 301 of the Penal Code (TCK). The students were nearly lynched in Eskişehir while protesting the prison operations of 2000 after seven years. They were taken into custody afterwards.

With this decision, students Ali Haydar Güneş, Esma Yavuz, Sabit Çiçek, Şahin Kösedağı, Nadide Toker, Ali Bozkına, Can Aydemir Sezer, Atilla Aka, Esra Sönmez and Nihal Samsun will be tried for the statements such as “murderer state” and “December 19 veterans”. They will be facing two year prison sentences. Their first hearing will be at Eskişehir’s 2nd Criminal Court of First Instance on November 19.

Temel Demirer, another person for whom Minister of Justice Mehmet Ali Şahin granted permission to be tried under article 301, will have his trial tomorrow (November 14).

Ministry of Justice had given permission for the continuance of the trial of Temel Demirer under article 301 for saying that Hrant Dink was not only killed for being an Armenian, but recognizing the genocide as well.

The court sent the case of Demirer who is on trial for “denigrating publicly the state of the Turkish Republic to the ministry on May 15.

Another Potential 301 Trial

From Today's Zaman:

A prosecution case file concerning an article penned by lawyer and human rights activist Orhan Kemal Cengiz has been sitting on Justice Minister Mehmet Ali Şahin's desk since late April.

The article subject to prosecution is titled "Time to question the role of the military!" and was published March 5 in an English-language newspaper. Only 14 days after the article was published, the Gendarmerie Command in Ankara filed a complaint addressed to the chief prosecutor in İzmir. Cengiz's official residence is still there, though he has been working and living in Ankara since autumn 2006.

In his letter of complaint, a copy of which was obtained by Today's Zaman, military judge and judicial councilor Gazi Koçer wrote, "Press freedom … doesn't give anybody the right to attack state institutions' honor and dignity. This situation necessitates the limitation of press freedom within specific limits and obliges that the report be rooted in reality." The document has the official stamp with the word "classified."

Here is a link to the column that Gazi Koçer thinks constitutes a crimes.

Amnesty International Reports a Difficult Year

Amnesty International released its 2008 report on the status of human rights in Turkey last year. The report observes the persistence of numerous human rights violations committed in the context of increased political instability and rising nationalist sentiment. Documented is a lack of fairness in judicial proceedings, cases of illegal torture and detention, police impunity, prison conditions, repressive acts committed against human rights workers, and continued restrictions on freedom of speech and expression. The report's dismal findings parallel conclusions made by Human Rights Watch when it issued its assessment in February (see Feb. 2 post).

In an interview with Today's Zaman, AI Turkey researcher Andrew Gardner called for the total abolition of Article 301 and other articles restricting free speech. In particular, the report called for abolition of Article 216 of the Turkish penal code, used to prosecute individuals for "inciting enmity or hatred among the population." AI concurred with the prevailing opinion of human rights activists that articles restricting free of expression are used in an arbitrary and often very political manner. Gardner also noted that AI is carefully monitoring the closure cases of AKP and DTP.

AI was harrassed by Turkish authorities in early 2007 when its bank accounts were frozen in January and an administrative fine imposed on its chairperson in May.

The report is quite disturbing and is posted in full below:

AMNESTY INTERNATIONAL 2007 REPORT

In the wake of increased political uncertainty and army interventions, nationalist sentiment and violence increased. Freedom of expression continued to be restricted. Allegations of torture and other ill-treatment and the use of excessive force by law enforcement officials persisted. Prosecutions for violations of human rights were ineffective and insufficient, and fair trial concerns persisted. The rights of refugees and asylum-seekers were violated. There was little progress in providing shelters for victims of domestic violence.

Background
An atmosphere of intolerance prevailed following the shooting in January of Turkish-Armenian journalist Hrant Dink. From May onwards a marked escalation in armed clashes between the Turkish armed forces and the Kurdistan Workers’ Party (PKK) led to human rights abuses. The military declared temporary security zones in three districts bordering Iraq in June and a further three districts in December.

The inability of parliament to elect a new president resulted in early parliamentary elections in July. The government was re-elected and in August parliament elected Abdullah Gül as President. In September, the government appointed a commission to draft major constitutional amendments. In November, the Constitutional Court began proceedings to ban the pro-Kurdish Democratic Society Party (DTP).

Bomb attacks by unknown individuals or groups on civilian targets killed and injured dozens of people. In May and October, bombs exploded in İzmir, killing two people and injuring many others. In May, a bomb in the Ulus district of Ankara killed nine people and injured more than 100. In September, an attack on a minibus in the province of Şırnak caused multiple casualties.

In December, Turkish armed forces launched military interventions in the predominantly Kurdish northern Iraq, targeting PKK bases.

Freedom of expression

The peaceful expression of opinion continued to be restricted in law and practice. Lawyers, journalists, human rights defenders and others were harassed, threatened, unjustly prosecuted and physically attacked. An increased number of cases were brought under Article 301 of the Penal Code, which criminalizes “denigration of Turkishness”, despite national and international opposition to the Article.

On 19 January, journalist and human rights defender Hrant Dink was shot dead. He had previously been prosecuted under Article 301. The suspected gunman allegedly stated that he shot Hrant Dink because he “denigrated Turkishness”. An estimated 100,000 people attended Hrant Dink’s funeral in an unprecedented display of solidarity. While a police investigation into the murder resulted in a number of suspects being brought to trial, the full culpability of the security services was not examined. In October, Hrant Dink’s son, Arat Dink, and Sarkis Seropyan, respectively assistant editor and owner of the Turkish-Armenian weekly Agos, were convicted under Article 301 and each received a one-year suspended sentence.

In April, two Turkish nationals and a German citizen who all worked for a Christian publishing house in Malatya were killed. The three reportedly had their hands and feet bound together and their throats cut. The trial of people charged in connection with the murders began in November.

Article 216 of the Penal Code, which criminalizes “inciting enmity or hatred among the population”, was applied in an arbitrary and overly restrictive manner.

In November, lawyer Eren Keskin received a one-year prison sentence for her use of the word “Kurdistan”. The sentence was later commuted to a fine of 3,300 liras (approximately US$2,800).

Prosecutions were also brought under Article 7(2) of the anti-terrorism law that criminalizes “making propaganda for a terrorist organization or for its aims”.

In November, Gülcihan Şimşek, a DTP member and mayor of the city of Van, received a one-year prison sentence for referring to PKK leader Abdullah Öcalan as “Mr”.

Human rights defenders

Human rights defenders were prosecuted for their peaceful activities.

In January, the bank accounts of Amnesty International Turkey were frozen on the demand of Istanbul Governor’s office on the grounds of alleged “illegal fundraising” and in May an administrative fine was imposed on the organization’s chairperson for the same offence. Amnesty International Turkey appealed, but both issues remained unresolved at the end of the year.

In June, three people associated with the Human Rights Association (İHD) were each sentenced to two years and eight months in prison for criticizing the “return to life” prison operation by state authorities in 2000.

Serpil Köksal, Murat Dünsen and İbrahim Kizartıcı were prosecuted for taking part in a campaign against compulsory military service. They were acquitted in December.
Istanbul Governor’s office applied to the courts for the closure of the lesbian, gay, bisexual and transgender people’s organization Lambda Istanbul on the grounds that the name and objectives of the group were against “law and morals”.

Impunity

Investigations into human rights violations perpetrated by law enforcement officials remained flawed and there were insufficient prosecutions. Official human rights mechanisms remained ineffective. In June, parliament amended the Law on the Powers and Duties of the Police, giving police further powers to use lethal force by allowing them to shoot escaping suspects if they ignore a warning to stop.

In April, all four police officers tried for killing Ahmet Kaymaz and his 12-year-old son Uğur outside their home were acquitted. The officers said that the deaths were the result of an armed clash, but forensic reports showed that both victims had been shot at close range several times.

The conviction was overturned of two military police officers and an informer found guilty of the 2005 bombing of a bookshop in the south-east town of Şemdinli in which one person was killed and others were injured. The retrial was heard by a military court. At the first hearing in December, the two military police officers were released to resume their duties.

In November, 10 police officers were found not guilty of the torture of two women in Istanbul police custody in 2002. The two women, “Y” and “C”, reportedly suffered torture including beatings, being stripped naked and then sprayed with cold water from a high pressure hose, and attempted rape. The verdicts followed a new medical report requested by the defendants that did not show “definite evidence that the crime of torture had been committed”.

Unfair trials

Fair trial concerns persisted, especially for those prosecuted under anti-terrorism laws. In protracted trials, statements allegedly extracted under torture were used as evidence.

In June, Mehmet Desde was imprisoned after being convicted with seven others of supporting or membership of an “illegal organization” because of links to the Bolshevik Party (North Kurdistan/Turkey). The Bolshevik Party has not used or advocated violence and the connection between it and those convicted was not proven. The conviction of Mehmet Desde was based largely on statements allegedly extracted under torture.

Selahattin Ökten spent the whole of 2007 in pre-trial detention after his arrest on suspicion of taking part in PKK activities. The charge was based on a single witness statement that was allegedly extracted under torture and was subsequently retracted.
Killings in disputed circumstances

Fatal shootings by the security forces continued to be reported, with failure to obey a warning to stop usually given as justification. However, incidents often involved a disproportionate use of force by security forces and some killings may have been extrajudicial executions. In a number of instances, investigations were compromised when evidence was lost by law enforcement officials.

In August, Nigerian asylum-seeker Festus Okey died after being shot in police custody in Istanbul. A crucial piece of evidence, the shirt he wore on the day of the shooting, was apparently lost by the police. A police officer was charged with intentional killing.

In September, Bülent Karataş was shot dead by military police in the Hozat province of Tunceli. According to Rıza Çiçek, who was also seriously injured in the incident, military police forced the pair to remove their clothes before shots were fired. An investigation was being conducted in secret.

Torture and other ill-treatment

Allegations of torture and other ill-treatment continued, especially outside official places of detention.

In June, Mustafa Kükçe died after being detained in several different police stations in Istanbul. Relatives who identified his body said that it was apparent that he had been tortured before his death. No case was brought against police officers.

Lawyer Muammer Öz was allegedly beaten by police officers while drinking tea with family members in the Moda district of Istanbul. An official medical report failed to show that his nose had been broken in the attack. Muammer Öz told Amnesty International that police beat him with batons and their fists and told him that they would never be punished. Two police officers were prosecuted and were awaiting trial.

Members of the security forces continued to use excessive force when policing demonstrations.

In some of the Labour Day demonstrations on 1 May in various parts of the country, police used batons and tear gas against peaceful demonstrators. More than 800 people were detained in Istanbul alone, although the total number of arrests was not known.

Prison conditions

Harsh and arbitrary punishments continued to be reported in “F-type” prisons. A circular published in January granting greater rights to prisoners to associate with one another remained largely unimplemented. Some prisoners were held in solitary confinement and small-group isolation. Widespread protests called for an end to the solitary confinement of PKK leader Abdullah Öcalan, and for an investigation into his treatment.

In May, the European Committee for the Prevention of Torture (CPT) visited the prison island of Imralı where Abdullah Öcalan remained imprisoned to examine the conditions of his detention and his state of health. The CPT findings had not been made public by the end of the year.

Conscientious objectors

Conscientious objection to military service was not recognized and no civilian alternative was available.

Persistent conscientious objector Osman Murat Ülke was again summoned to serve the remainder of his prison sentence for failing to perform military service. In seeking to punish him, Turkey remained in defiance of the 2006 judgment of the European Court of Human Rights in the Ülke case, which required Turkey to implement legislation to prevent the continuous prosecution of conscientious objectors.

Refugees and asylum-seekers

Refugees continued to be denied access to a fair and effective national asylum system. The Turkish authorities forcibly returned recognized refugees and asylum-seekers to countries where they were at risk of serious human rights violations, in violation of international law.

In October, Ayoub Parniyani, recognized as a refugee by UNHCR, his wife Aysha Khaeirzade and their son Komas Parniyani, all Iranian nationals, were forcibly returned to northern Iraq. The action followed the forcible return to Iraq in July of 135 Iraqis who were denied the right to seek asylum.

Violence against women

Laws and regulations to protect women victims of domestic violence were inadequately implemented. The number of shelters remained far below the amount stipulated under the 2004 Law on Municipalities, which required a shelter in all settlements with a population of more than 50,000.

A telephone hotline for victims of domestic violence ordered by the Prime Minister in July 2006 had not been set up by the end of the year.

European Parliament Approves Turkey Progress Report, Criticizes Recent AKP Moves

The European Parliament approved two amendments to the Turkey progress report the EP's Foreign Affair Committee approved in April (see April 25 post) and voted to approve the final version of the report. Both amendments can be read as critical of recent actions taken by AKP. The first amendment was pushed by leftist parliamentarians and condemns the excessive force used by police during May Day celebrations (see May 8 post). The second amendment promulgates that much more is needed to be done to protect freedom of expression in Turkey, basically affirming what many EU politicians have already said was quite a lackluster reform that might change very little (see May 8 post and May 21 post).

As to the closure case, the report called on the Constitutional Court to respect the Venice criteria for party closure and affirmed its concern over its impact on Turkish democratization. European Parliament Rapporteur on Turkey Oomen-Ruitjen said that AKP might have avoided the case completely if it had moved ahead with the constitutional overhaul it was planning and remarked that suspension of constitutional reforms was regrettable. Oomen-Ruitjen's remarks speak to EU politicians' utter lack of faith in the judiciary of Turkey to eschew politics, and, yes, while it is sad that AKP did not push forward with the constitution instead of stopping along the way to make a deal that has cost them a great lot of political capital and put the party at risk, what can be done about it now?

CHP Not to Seek Annulment of 301 Amendment

CHP will not join MHP in its intention to seek annulment of the recently passed amendments to Article 301 at the Constitutional Court. Party sources claim they would have reason to take the amendments to the Court if the changes had vested the president with the power to review 301 cases, but as it stands, the bill seems to be in accordance with court precedent. CHP stressed that the decision does not mean that the party is not opposed to the changes.

Lackluster Amendment to Article 301 Passes Parliament

A surprise that the vote came so early, AKP pushed its amendment to Article 301through Parliament in the early hours of the morning on April 30. Watching the news break on German television while I waited in the Frankfurt airport, it struck me how much this debate has meant to Turkish politics in the past few months and how insignificant the change might really be in terms of actually stopping the prosecutions of journalists, academics, politicians, public intellectuals, activists, and a whole host of other individuals who risk prison sentences each time they say something that might raise the ire of some unknown individual somewhere in the country.

The amendment to the penal code passed Parliament with only the vote of AKP members. DTP refused to vote for the proposal because they considered it a half-measure and doubted the sincerity of AKP in really wanting to promote freedom of speech in Turkey. Although it is true that CHP and MHP viciously opposed the bill as insults to Turkish nationalism and a curtailment on necessary powers the state must take to protect itself from critics, AKP could have surely pushed for a stronger amendment. Unlike an amendment to the constitution, all that is needed to revise the penal code is a simple majority vote in Parliament.

Reaction from Europe over the past week has exuded ambivalence. Joost Lagendijk, co-chairman of the Turkey-EU Joint Parliamentary Commission, joined many other politicians in praising the reform measure, but like most other EU politicians, argued strongly that much more must be done to curtail restrictions on freedom of speech. Lagendijk said, "This will not win the beauty contest of the legal reforms. But I think the immediate effect will be that there won't be any more cases opened on the basis of 301." EU Enlargement Commissioner Olli Rehn echoed Lagendijk and pointedly noted that the real key to the reform being successful will be its implementation, whether the amendment really does render Article 301 prosecutions dead in the water.

However, if this implementation means the end to individuals prosecuted for critical things they say that might be interpreted as an insult of some kind, most will be very surprised. While the change might bring an end to 301 prosecutions, which is itself doubtful, it is unlikely to stop zealous prosecutors from filing charges under other laws that restrict free speech and do not require any sort of approval from the Justice Ministy. In short, if 301 is in fact more or less gone, prosecutors have a host of other legal measures to which to turn and that allow sentences just as heavy as the convenient Article 301 did. For an example, see the case against Atilla Yayla in January.

For criticism of the lack of change embraced by Article 301, read the April 17 press release issued by the Human Rights Association (İnsan Hakları Derneği—İHD), a human rights NGO based in İstanbul.

The Fourth Estate

On April 30, Parliament Speaker Köksal Toptan addressed the "Press-Politics Relations" panel in Parliament on occasion of the 44th anniversary of the founding of the Association of Parliament Correspondents. Toptan proclaimed, “In democracies, press is the Fourth Estate after the legislative, executive and judiciary powers. The public needs to be informed at the right time and truthfully; opinions have to be discussed freely and openly in a healthy democracy.” However, much more revealing to his jejune salute to the press was a statement he made about this Fourth Estate: "Politics and press are not rivals of one another. We run on the same track, serving the public." Well, yes, this is in part true, but what it does not acknowledge is that this relationship is often confrontational. A healthy press will be multiple in its points of view, unrestricted in its freedom to operate, and unrelenting in its criticism of government institutions.

I bring this up not to harangue Toptan, but to draw attention to a problem in Turkey that needs to be redressed. A recent poll released by WorldPublicOpinion.org, a project of the Program on International Policy Attitudes at the University of Maryland. The poll surveyed attitudes toward the press in a variety of countries around the world and, in relation to Turkey, found there to be substantial support for government interference. Only 45 percent of Turks responded that they think the media should have the right to publish stories even when the government thinks their publication will cause political instability while 42 percent of respondents affirmed the right of the government to so intervene. Only 38 percent of Turks thought that the media should be given moe freedom. This is particularly enlightening in response to the current Article 301 debate and suggest that CHP, MHP, and plenty of AKP officials who were opposed to stronger reform measures have strong public backing in the country.

The WorldOpinion survey's findings also complement analysis of Freedom Houses' recently released ratings assessing freedom of press in Turkey. Out of Freedom Huses' 2008 ratings of 195 countries and territories, 72 (37 percent) were rated "Free," 59 (30 percent) "Partly Free" and 64 (33 percent) "Not Free." The evaluations are based on an assessment of the legal, political and economic environments in which journalists worked during 2007. Turkey secured a rating of "partly free." Acknowledging reform of Article 301 as a step forward, the report commented about the impact of the restriction on journalists ability to operate: "Convictions against journalists are made much less frequently than are prosecutions, but trials are time-consuming and expensive." The report concluded that press freedom has declined globally in the past year.

If Turkey is going to realize greater freedom for the press and the AKP to adopt a more liberal stance toward the media, efforts should be made to increase understanding of the healthy, oppositional, and agonistic relationship inherent between the press and the government and denounce government repression of journalists and their work. This would be a healthy part of the discourse that AKP might assume as it fulfills its promises to move past half-measures and pass real and meaningful reform in regards to the protection of freedom of speech.

For more information, see Reporters Without Borders' annual 2007 report on the state of the Turkish press.

Article 301 Proposal Revised

It seems that AKP has heeded criticism that the president should not be vested with the power to approve court cases prosecuting individuals under Article 301. Following criticism by opposition parties and the reported reluctance on President Gül, AKP has revised the proposal to place this authority in the hands of the Justice Minister. Differing opinions on what office should have this authority have been ongoing since AKP first started considering the proposal (see previous posts).

Passage of the amendment will likely take place within the coming week.

European Parliament Progress Report Released

The European Parliament released its 2007 report of Turkey's progress toward accession today. The report was approved in committee by the EP on Monday and expressed concern about the closure case, declaring it expected the Constitutional Court to rule in accordance with ECHR case law and the Venice criteria for banning political parties, thereby essentially throwing out the case against AKP. The report also praised efforts to reform Article 301 while strongly maintaining that this is merely a first of many steps Turkey will need to take to end restrictions on freedom of expression. Few changes were made from its earlier released draft (see March 14 post).

Can Article 301 Prosecutions Become Even More Political?

Publisher Ragıp Zarakolu is currently charged under Article 301 for insulting "Turkishness" thanks to his publication of a translation of George Jerjian’s The Truth Will Set Us Free. According to Today's Zaman, the book is a call for reconciliation between Turks and Armenians and tells the story of how a Turk saved the writer’s Armenian grandmother. The newspaper's profile of Zarakolu includes the publisher's skepticism that reform to Article 301 will amount to anything.

Indeed, Zarakolu hints that the reform measure might even foment the zealotry of the prosecutors who are pursuing his case. One of the provisions of the new law currently awaiting consideration by the parliament's General Assembly is a reduction of the maximum sentence allowed under the criminal code from three to two years so that the sentence might be suspended. Sentences can only be suspended for prison terms less than two years. Individuals found guilty and sentenced under Article 301 are frequently sentenced for periods of less than two years and often serve suspended sentences. Zarakolu is serving such a sentence right now for another piece of journalism. According to Zarakolu, although his sentence would be eligible for suspension under the new law, the fact that he is already serving a suspended sentence combined with the intense political climate might well land him in prison. Remarkable is the fatalism the publisher has adopted, but, really, what is the man to do?

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."

DTP Removes Its Support for 301 Proposal

The Kurdish DTP announced yesterday at his party's parliamentary group meeting that DTP will not be supporting AKP's proposal to amend Article 301. According to DTP leader Ahmet Türk, the proposal falls short of addressing the fundamental problem of restrictions against freedom of speech in Turkey.

“Several circles have discussed whether the president should be entitled to give
permission for the prosecution of individuals under Article 301. Isn’t Turkey’s
aspiration to save individuals, journalists and writers from being charged under
this article?”

Türk drew attention to the numerous other laws under which individuals can be prosecuted for their speech and which are frequently wielded against DTP members and Kurdish activists. While the trial of Turkish intellectuals under Article 301 has attracted a great amount of attention from the Western press, cases against Kurdish politicians and activists under other articles of the penal code have attracted far less attention. Oftentimes, Kurdish activists and journalists are accused of acting in cahoots with organizations and newspapers that support terrorism and very little evidence is ever provided as to the validity of these accusations. For documentation of this phenomenon and the greater context of Türk's remarks and DTP's decision not to support AKP's proposal, see "Reform and Regression: Freedom of the Media in Turkey," a fact-finding report released in October by the Kurdish Human Rights Project in London, the Index on Censorship, the Bar Human Rights Committee of England and Wales, and the Centre for European Studies in Limerick, Ireland.

Same Speech, Same Courthouse, Different Ruling

If there was any doubt to the capriciousness entailed in the application of Article 301, it should be laid aside. Although Eren Keskin was found guilty in 2006 of violating Article 301 for critical remarks about the military, she has been acquitted for the same crime and in the same courthourse as that in which she was convicted last year. The crime for which Keskin was convicted last fall stemmed from commentary she gave at a conference in Cologne in 2002 in which she addressed the problem of sexual assault in the military. Keskin was convicted again this March for comments she made in a German newspaper (see March 22 post).

In Cologne, Keskin remarked, "The military in Turkey is involved in commerce. It buys and sells banks. It collects arms and capital in the same hand. As long as the country is not ruled by civilian forces, the problems of women will never be solved. The soldiers [i.e., the military] engage in sexual abuse. They even give married women chastity tests just to torture them." Two criminal investigations were opened against Keskin under Article 301 for the same remark. One investigation followed a complaint made by staunch secularist academic and CHP deputy Necla Arat and the other followed a complaint filed a year later by the police in İstanbul.

Keskin's 2006 conviction was in response to the complaint filed by Arat and was delivered by the Kartal Criminal Court of 3rd Instance. Her acquittal was issued in the Kartal Criminal Court of 5th Instance not far from the court that had convicted her the year before. The latter court ruled that Keskin's remarks "are only harsh criticism. They fall under the scope of freedom of expression."

The case further scandalizes the Turkish state's practice of convicting its critics for speech some state actors consider offensive. The Kartal Criminal Court of 3rd Instance sentenced Keskin to 10 months in prison. Although the verdict was converted to a fine of YTL 6,000, Keskin is appealing the ruling to the Supreme Court of Criminal Appeals and has vowed to serve her time in jail rather than pay it. The appeals court is expected to announce its verdict May 22.

Repression, Dissent, and the Turkish Press

PHOTO: Hrant Dink's body lies on an İstanbul street. The journalist was among one of the 41 murdered in less than 20 years. It is alleged that the murder is connected to the Ergenekon gang, a paramilitary organization with links to the Turkish Armed Forces.

At a meeting commemorating its twentieth anniversary, the Turkish Press Council reviewed restrictions on press freedom over the past twenty years. A report prepared by the Council documented the murder of 41 journalists since 1989, the most recent being the assassination of Hrant Dink in January of last year. According to its annual report, the press is under continued threat of state repression. Documented practices of repression include the physical assault of journalists by police forces (the report says this has largely been replaced by taking journalists into custody for various amounts of time), the prosecution of journalists under various laws that restrict freedom of speech and expression, press closure (such was the case with Nokta last year), and the restriction of press outlets from generating advertising monies.

The Press Council also discussed AKP's proposal to amend Article 301 and echoed criticism from other quarters that the changes would likely not amount to much in terms of furthering freedom of the press. Some members of the Council commented that the new law might in practice prove more obstructive than the old law in that journalists since the article changes the terminology of "investigation" to one of "legal proceeding" and adds additional steps to the process of prosecuting journalists under the article. One reporter told the Turkish Daily News that this amounts to requiring procecutors' to start an investigation, calling upon the journalist to come and make a deposition, then the expert preparing his report, the prosecutor preparing his or her indictment, giving it to the court, the court declaring the acceptance of the case, and then the legal proceedings would be started and the court would write to the president to ask for his permission.

Introduced to the parliamentary Justice Commission, pressure continues to build around proposal's vesting the president with the power to approve prosecutions. An article in Sunday's Radikal reported that President Gül had expressed skepticism about the measure's potential to turn the president's office into an "additional judicial court." In recent years, the number of 301 cases prosecuted has been well over one hundred and the job of granting prosecutors the green light would no doubt be cumbersome and, most importantly, very political. Justice Minister Ali Mehmet Şahin denied that the president is in opposition to the measure and Prime Minister Erdoğan defended it by stating that giving the president such approval is the only way to assure that approval of prosecutions is not political. Erdoğan expressed the opinion that the president's office is better suited for granting approval because other offices are political (such as that of the justice minister).

Power of the President?

Criticism of AKP's proposal to amend Article 301 has been rampant from both those who do not think it goes far enough and those who see any change as cow-tailing to EU pressure and tying the hands of the Turkish state. In his column in yesterday's Turkish Daily News, Burak Bekdil reflected the former. However, what is of note in Bekdil's complaints is his attention to the consent-of-the-president component in the proposal. As it stands now, the proposal reads that the the president's approval should be sought before proceeding with 301 prosecutions. Before any 301 complaint is to be tried in court, the president is supposed to decide that a trial is in the "national interest."

Although AKP members have argued that the president's decision as to whether prosecutions are in the national interest is not inappropriately political and very different from the president deciding the guilt or innocence of any potential defendant (thus not unduly entangling the office in the judiciary), the president can hardly be expected to be neutral when evaluating Article 301 complaints. This seems all the more nonsensical when one takes into account that under the current constitution the president is already unrealistically expected to be above politics.

Whether to place the authority to review 301 complaints before their prosecution in the office of the president, the justice minister, or another body was an issue of debate within AKP, and it does indeed seem that the decision AKP made risks entangling the president in politics since (unfortunately) 301 prosecutions are inherently political. More evidence that the best thing to do would be to scrap 301 altogether. . .

Here is Bekdil's column:

I RESPECT YOUR VIEWS, BUT I SENTENCE YOU TO 350 YEARS!—Burak Bekdil

The headline is from a cartoon published recently in a humor magazine. The cartoon depicts a courtroom in which the defendant looks helpless and the presiding judge announces the verdict: “I respect your views, but I sentence you to 350 years in prison!” That more or less summarizes Turkey's unfortunate journeys from Article 159 of the penal code to 301, and now to 301 Version “Please smile!”Under 159 it was an offense to insult Turkishness and the several gray buildings in Ankara that accounted for the country's constitutional institutions (for example, this columnist was given a 20-month suspended sentence for insulting the judiciary).

Please smile!:

Under 301, however, “insulting” them was no longer a crime, but “humiliating” them was. For that reason nearly a thousand cases have been opened against not only writers and intellectuals, but also against anyone who angered the occupiers of those gray buildings, including Turkish-Armenian journalist Hrant Dink. And finally, under 301 Version “Please smile!” humiliating “Turkishness” and those gray buildings will no longer be an offense, but humiliating the “Turkish nation” and those gray buildings will be. But there is another difference between 301 and 301 Version “Please smile!” The present legislation requires a nod from the justice minister before a court case against a defendant can proceed.

The new “absolutely EU-friendly version” requires that nod not from the justice minister, but from the president; or, in other words, that go-ahead will be given by the former AKP foreign minister instead of the current AKP justice minister. Of course, that makes a big difference, only if you are naïve enough to believe in fairy tales and in the presumption that we have a perfectly neutral, absolutely apolitical president. No, unfortunately, former President Ahmet Necdet Sezer was “biased” in the wars between Islamists and seculars, so is President Abdullah Gül, and probably so will be Mr. Gül's successor, in favor of either warring camp. There are several potentially explosive aspects about Version “Please smile!” To begin with, tasking the president with the job of selecting which court cases on charges of humiliating sacred Turkish entities should proceed and which ones should not is against the constitutional article that tells about presidential duties. But that's only a minor fault. Also technically, a presidential nod will mean yes, the court should proceed, and then we'll have a real case. Without that nod, the indictment will become null and void but will forever stand there, depriving the defendant of the right to stand trial. In that case, the defendants will forever be deprived of the right to defend and prove their innocence. This fault may be overcome by an amendment so as to allow proceedings in case the defendant prefers so. But we'll probably have several people around prosecuted but is neither guilty nor innocent.

Potentially explosive aspects:

Another technical problem could be the conflict of interest. What will happen if someone is prosecuted for humiliating the president and his dossier ends up on the president's desk for approval for legal proceedings? Will it not be against the basic principle that a party in a legal dispute cannot also be part of the judgment/trial process? Of course, the same problem was there in the case of insulting the judiciary in general (like in my case), but what's the point about shifting the same dilemma from one gray building to another? But more essentially, can that task be entrusted to a presumably neutral, but practically political figure, who, for example, comes from the ranks of Islamic militancy or, for that matter, Kemalist militancy? Under the draft Version “Please smile!” once the prosecutor has indicted a defendant for humiliating Turkish sacredness, including the same gray buildings, the president will decide whether the court should proceed. Here is a fictitious example that might illustrate the risk. Columnist X writes an article in which he argues that “the chief public prosecutor's indictment against the AKP is evil, shameless and an act that reflects a corrupt mindset.” The prosecutor indicts columnist X on charges of “humiliating the judiciary.” The dossier goes to President Gül. Mr. Gül reads it and denies permission for legal proceeding, citing freedom of expression. Personally speaking, that would be all very fine with me. In our second case, columnist Y writes an article in which he argues that “Parliament's constitutional amendments that lift the campus ban on the Islamic turban are evil, shameless, and acts that reflect a corrupt mindset.” The prosecutor indicts columnist Y on charges of “humiliating Parliament.” The dossier goes to President Gül. Mr. Gül reads it and endorses legal proceedings, citing the dignity of Parliament. How, then, should we view the cases of columnists X and Y? With good faith and a childish belief that our “former” Islamist president “who is at equal distance to every ideology and opinion” will remain perfectly neutral in his judgments? No, not me, I never believed in fairy tales. There is more than enough evidence that the political movement in which Mr. Gül “evolved” has the habit of following a part-time democratic practice when it comes to free speech. Wear a hat or you'll be prosecuted!

The trouble is, the opposite camp has a similarly unconvincing past record in its commitment to free speech: Free speech for “suitable” speech only and no freedom for “unsuitable” speech. It's the same malady with opposite appearances. And we cannot guarantee that the next 39 presidents will come from the AKP ranks, can we?Once, Cemil Çiçek, then justice minister, said something admirably realistic, “Amending Article 301 could mean nothing when there are several other articles under which prosecutors and judges can convict someone (if they wish to).” I once wrote that had Mr. Dink, for example, not been prosecuted under 301, he could well have been prosecuted under 222 which, believe it or not, makes it compulsory for every man to wear a western-style hat! If you want to cause trouble to someone on ideological grounds, the penal code is an endless treasure! After all, do we not have “independent judges” and laws subject to “interpretation by these independent judges?” The only solution is becoming increasingly utopian in this increasingly polarized society: Minimal room for judicial interpretation and maximal freedom from ideology. I know this sounds too oxymoronic in the Turkey of 2008.

Hardly a Dramatic Change

Despite all of the yelling and screaming by members of MHP and CHP, the AKP proposal it introduced to Parliament on Monday will not address the fundamental problem of freedom of expression in Turkey.

The proposal makes three substantive changes: first, it will require that prosecutors seek the approval of the president before opening a case; second, it changes the crime from one of insulting "Turkishness" to one of insulting the "Turkish nation"; third, it reduces the maximum sentence to two years from three, the significance being that two-year sentences can be suspended. Even if the changes are made, there are numerous other articles in the Turkish Penal Code under which to prosecute individuals (see Jan. 26 post). As Today's Zaman writes, this miscellany of restrictions on free speech in the penal code (not to mention various other laws not included in the penal code) provides ample flexibility to zealous prosecutors looking to punush intellectuals for speech with which they disagree.

Although the proposal has been submitted to Parliament, it has been held back from the parliament's Justice Commission by CHP deputy speaker Güldal Mumcu. It will likely be introduced next week and will reach the General Assembly following its approval by the Justice Commission.

The AKP executive committe drafted the proposal in February and has since been sitting on it(see Feb. 15 post).

For more commentary from those displeased with the reform bill, see yesterday's article in Today's Zaman.