AMNESTY INTERNATIONAL
Public Statement
AI Index: EUR 44/035/2005 (Public)
News Service No: 324
1 December 2005
Turkey: Article 301 is a threat to freedom of expression and must be
repealed now!
Amnesty
International is extremely concerned at the frequent use of Article 301 of the
Turkish Penal Code (TPC) to prosecute human rights defenders, journalists and
other members of civil society peacefully expressing their dissenting opinion. Article
301, on the denigration of Turkishness, the Republic, and the foundation and
institutions of the State, was introduced with the legislative reforms of 1
June 2005 and replaced Article 159 of the old penal code. Amnesty International
repeatedly opposed the use of Article 159 to prosecute non-violent critical
opinion and called on the Turkish authorities to abolish the article.
The organization is now concerned that the wide and vague terms of Article 301
mean that it too can be applied arbitrarily to criminalize a huge range of
critical opinions. It states that:
1. Public denigration of Turkishness, the
Republic or the Grand National Assembly of Turkey shall be punishable by
imprisonment of between six months and three years.
2. Public denigration of the Government of the Republic of Turkey, the
judicial institutions of the State, the military or security structures shall
be punishable by imprisonment of between six months and two years.
3. In cases where denigration of Turkishness is committed by a Turkish
citizen in another country the punishment shall be increased by one third.
4. Expressions of thought intended to criticize shall not constitute a
crime.
The final qualification of the article in
paragraph 4 suggests that expressions amounting to “criticism” rather than
“public denigration” are not punishable. Amnesty International considers that
the attempt to draw a distinction between criticism and denigration is highly
problematic. The lack of legal certainty of the crime will lead to arbitrary
interpretation by prosecutors and judges. Even the Turkish Minister of Justice
himself, Cemil Cicek, has reportedly stated that “the whole issue comes down to
how the laws are interpreted”.
Amnesty International believes that Article 301 poses a direct threat to
freedom of expression, as enshrined in Article 19 of the International Covenant
on Civil and Political Rights (ICCPR) and in Article 10 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Turkey
is a State Party to both conventions and therefore the Turkish government has a
legal obligation to uphold this freedom. Nevertheless Amnesty International
receives a steady flow of cases opened against individuals under Article 301,
for expressing a wide variety of opinions. Some of these cases are outlined
below. The organization hopes that the international attention focused on the
novelist Orhan Pamuk's case will also cast light on the cases of lesser known
individuals prosecuted under the same legislation.
With regard to the concerns above, Amnesty International notes also the
jurisprudence of the European Court of Human Rights, which states that the
limits of acceptable criticism are broader as regards politicians than private
individuals (Lingens v Austria, 1986); are wider with regard to
government (Castells v Spain, 1992); and that the authorities of a
democratic state must accept criticism even if provocative or insulting (Ozgur
Gundem v Turkey, 2000). In addition, the law has to be accessible and
formulated with precision sufficient for the citizen to regulate their conduct
(Sunday Times v the United Kingdom, 1998). Furthermore, Amnesty
International notes Recommendation 1589 (2003)1 of the Parliamentary Assembly
of the Council of Europe, which urges states inter alia to “abolish
legislation that makes journalistic freedom of expression subject to criminal
prosecution”; “to stop immediately all forms of legal and economic harassment
of dissenting media” and “to incorporate the case-law of the European Court of
Human Rights in the field of freedom of expression into their domestic
legislation and ensure the relevant training of judges”.
Cases opened under Article 301
Orhan Pamuk is an internationally-known Turkish author whose novels,
including Snow and My Name is Red, have been translated into many
languages and have received wide critical acclaim. He is facing charges under
Article 301 for comments he made during an interview he gave to a Swiss
newspaper (Tages Anzeiger) on 5 February 2005. In the interview, Orhan Pamuk
stated, “30,000 Kurds and a million Armenians were murdered. Hardly anyone
dares mention it, so I do. And that’s why I’m hated”. The first hearing of his
case will take place in the Sisli Court of First Instance No. 2 in Istanbul on
16 December 2005.
Hrant Dink is a journalist and the editor of the Armenian-language
weekly newspaper Agos, which is published in Istanbul. On 7 October
2005, Hrant Dink was given a six-month suspended prison sentence by the Sisli
Court of First Instance No. 2 in Istanbul for “denigrating Turkishness” in an
article he wrote on Armenian identity. According to the prosecutor in the case,
Hrant Dink had written his article with the intention of denigrating Turkish
national identity. The court suspended the sentence as the journalist had no
previous convictions, on condition that he does not repeat the offence. Hrant
Dink is currently appealing the decision. However, he is also being prosecuted
under Article 301 for another offence (see below). Should he be imprisoned,
Amnesty International would consider him to be a prisoner of conscience.
Sehmus Ulek is the Vice-President of the Turkish human rights NGO Mazlum
Der. On 28 April 2005 the Sanlıurfa Court of First Instance No. 3 started
hearing a case against him and Hrant Dink, under Article 159 of the old
TPC (now Article 301) for speeches they made during a conference organized by
Mazlum Der’s Urfa branch on 14 December 2002 entitled “Global Security, Terror
and Human Rights, Multi-culturalism, Minorities and Human Rights”. Sehmus Ulek
referred in his speech to the nation-building project of the Turkish Republic
as it had affected, in particular, the southeastern area of the country; Hrant
Dink discussed his own relationship to official conceptions of Turkish
identity. The next hearing of the case will take place on 9 February 2006.
A trial began in May 2005 at the Beyoglu Court of First Instance No. 2 in
Istanbul against publisher Ragip Zarakolu for his publication of a
Turkish translation of a book by Dora Sakayan entitled Experiences of an
Armenian Doctor: Garabet Hacheryan's Izmir Journal (Bir Ermeni Doktorun
Yasadıkları: Garabet Haceryan'ın İzmir Guncesi; Istanbul: Belge 2005). Ragip
Zarakolu had been charged under Article 159 of the TPC for “denigrating
Turkishness and the security forces”, and then under Article 301 after the new
TPC came into effect. Another case had been opened against him in March, in
which Ragip Zarakolu was charged with “denigrating the state and the republic”
under Article 159 (also converted to Article 301) and “insulting Ataturk's
memory” under Law No 5816 for publishing a Turkish translation of a book by
George Jerjian entitled The Truth Will Set Us Free: Armenians and Turks
Reconciled (Gercek bizi Ozgur Kalıcak; Istanbul: Belge 2004).
Fatih Tas is a 26-year-old student of Communications and Journalism at
Istanbul University and the owner of Aram publishing house. He is currently
being tried under Article 301 because he published a Turkish translation of a
book by the American academic John Tirman, entitled Savas Ganimetleri:
Amerikan Silah Ticaretinin Insan Bedeli (Istanbul: Aram, 2005) (The
Spoils of War: the Human Cost of America’s Arms Trade), that reportedly
includes a map depicting a large section of Turkey as traditionally Kurdish and
alleges that the Turkish military perpetrated a number of human rights abuses
in the south-east of the country during the 1980s and 1990s. Fatih Tas argues
that the book contains nothing that has not previously been discussed in the
Turkish Parliament or media, and was not intended to insult Turkey or
Turkishness. The prosecutor reportedly demanded that each “insult” in the book
should be tried as a separate charge and called for Fatih Tas to be given a
prison sentence of ten and a half years. The next hearing of his case will take
place on 2 December 2005 at the Court of First Instance No.2 in Istanbul. In
relation to other statements made in the book, Fatih Tas also faces charges
under Articles 1/1 and 2 of Law 5816, which prohibits publicly insulting the
memory of Ataturk.
Murat Pabuc was a lieutenant in the Turkish army who retired on grounds
of disability. Whilst still serving, he witnessed the massive earthquake that
hit Turkey in August 1999, as well as the institutional corruption that he
alleges followed it. He became disillusioned with his military duties, seeing
soldiers as being alienated from ordinary people, and began to refuse orders. He
eventually began undergoing psychiatric treatment. In June 2005 he published
his book Boyalı Bank Nobetini Terk Etmek The literal translation of this
title is “Abandoning the Duty of the Painted Bench”. It alludes to a Turkish
anecdote which portrays a pastiche of a soldier following orders
unquestioningly. He believes that this was the only way for him to express what
he had experienced in the army. As a result he is facing a trial for “public
denigration of the military” under Article 301.
Birol Duru is a journalist. On 17 November 2005 he was charged with
“denigrating the security forces” under Article 301 because he published on the
Dicle news agency a press release from the Human Rights Association (IHD)
Bingol branch which stated that the security forces were burning forests in
Bingol and Tunceli. The president of IHD’s Bingol branch, Rıdvan Kızgın,
is also charged under other legislation for the contents of the press release. Rıdvan
Kızgın has had over 47 cases opened against him since 2001, and Amnesty
International is currently running a web action http://web.amnesty.org/pages/tur-161105-action-eng
for him as part of its ongoing campaigning work on human rights defenders in
Turkey and Eurasia. Birol Duru is due to be sentenced on 8 December 2005.
Amnesty International welcomes many of the changes introduced by the
legislative reforms that came into force on 1 June 2005. However, the
organization believes that the breadth and frequency of the cases cited above
illustrates the threat that Article 301 poses to the principle of freedom of
expression and calls for it to be repealed. Human rights activists, writers,
publishers -- in fact potentially anybody -- who express views which run
counter to “official history” or the dominant ideology may find themselves
prosecuted. That such prosecutions rarely end in imprisonment and more often in
fines or acquittal or the dropping of charges is small consolation. The
initiation of these legal proceedings is a way of trying to silence opposition
voices and should be addressed immediately. Amnesty international considers
Article 301 to be at odds with Turkey’s international legal obligations, and
therefore calls on the Turkish authorities to terminate without delay all prosecutions
against individuals under it, and to abolish the article in its entirety.