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 Vahit Bıçak, who teaches criminal law, says: "The penal code has to be absolutely clear. It is wrong to put in unclear clauses and thereby put the ball in the court of the prosecutor or the judge."...
(Today's Zaman, 10 April 2008, E. Barış Altıntaş) Turkey is about to amend Article 301 of its penal code, seen as a major obstacle to free speech, but dozens of similar articles that constitute a potential threat to free expression and still others that can easily be manipulated by overzealous judges to restrict freedoms remain in the penal code, legal experts have emphasized.
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Article 301 of the Turkish Penal Code (TCK), which criminalizes the ambiguous concept of "Turkishness," has long been criticized by domestic and international rights groups as well as the European Union for stifling freedom of speech. The government has pledged for more than a year to amend the controversial article, used by nationalist-minded prosecutors to take hundreds of intellectuals and journalists, including Nobel Literature Laureate Orhan Pamuk, to court for insulting Turkishness.
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Even if Article 301 was removed entirely, as many experts suggest would be the only viable solution to the problems it creates, others would fill its place. A key example of this is Article 216, which defines "inciting people to hatred and hostility" as a crime. Erdal Doğan, a lawyer for the late Turkish-Armenian journalist Hrant Dink -- who was shot dead by an ultra-nationalist teenager in 2007 after a conviction under Article 301 -- notes that this article, which, in essence, is an anti-racism article, is frequently exploited by prosecutors to stifle freedom of speech. In fact, there are already many cases on 216-related charges; however, the article is in the background since none of these have involved high-profile individuals as in the 301 cases.
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Similar to 216, Article 288 of the code, which criminalizes making public declarations about an ongoing court case, is frequently abused by ultra-nationalist prosecutors. .
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"When Hrant was facing charges on 301, they filed against him under 288 for a comment he made about his own case," Doğan remembers emphasizing at the time that an article initially intended to protect the defendant had actually been used against him.
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Article 288 could also be potentially harmful to judicial transparency. Doğan points out, metaphorically speaking: "The judiciary itself commits murders. This article prevents discussion on those."
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The eighth paragraph of Article 220, which criminalizes "propagating an outlawed organization," Diyarbakır Bar Association head Sezgin Tanrıkulu emphasizes, has frequently been used against declarations, statements and remarks made by Kurdish politicians. He says Article 222 of the TCK, which criminalizes violating a 1925-dated law on the Turkish alphabet, is simply grounds for prosecuting an individual for using the letters "q," "x" and "w," which are not included in the Turkish alphabet. Although these letters are frequently used in many publications in Turkey printed in different languages such as English or French, they have been known to cause their publishers trouble if they are part of a text in Kurdish. Tanrıkulu said the seventh article of Turkey's Anti-Terrorism Law is also frequently abused by prosecutors and used to prosecute people of Kurdish ethnicity. "At the end of the day, it is a matter of mentality," Tanrıkulu said. "If the prosecutors and judges are left the slightest power to take initiative, the laws are almost always used against rights and freedoms."
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Doğan agrees; he notes that even if all these problematic articles were removed, the record of the Turkish judiciary in respecting freedom of expression as a basic right would not significantly improve. "The judiciary needs a radical shakeup," he said. Stating that the primary instinct of the judiciary in Turkey is to protect the state, Doğan noted, "The one single ideology, the basis and the aim of Turkish prosecutors and particularly judges should be the universal principles of law." To make his point about how well, or how poorly, Turkey is doing in terms of international laws and standards, Doğan notes that the highest number of cases Turkey was convicted on in the European Court of Human Rights were on charges of violating article six of the European Convention on Human Rights, which covers the right to fair trial.
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Another major obstacle to freedom of speech is Article 318, the crime of "discouraging the public from serving in the army." Ümit Kardaş, a retired military judge, notes that there are a significant number of court cases against individuals under 318, which came under the spotlight only when singer Bülent Ersoy got in trouble with it for stating her belief that a military operation against the separatist Kurdistan Workers' Party (PKK) in northern Iraq was not working to resolve the issue and that Turkish troops were dying in vain. "You could be charged for defending conscientious objectors," Kardaş said. The phrase is so vague that any anti-military remark could be deemed an attempt to discourage the people from military service, he noted.
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Ambiguity, self-censorship and social reflection
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Most of the time, the ambiguity of the penal code article is the problem. Professor Vahit Bıçak, who teaches criminal law, says: "The penal code has to be absolutely clear. It is wrong to put in unclear clauses and thereby put the ball in the court of the prosecutor or the judge."
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Lack of clarity itself is a threat to democracy, Bıçak, who recently provided the only translation of the TCK in the English language, warns emphatically. "Ambiguity in the penal code forces a person to impose self-censorship, which keeps free opinions from emerging. In a democracy, those who think differently should be encouraged. In a society which limits its expression, the possibility of creating ideas that would help the society move forward is rather weak," he noted.
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But it is likely that Article 305 would be the one receiving the most discussion if 301 didn't exist. The article criminalizes "engaging in deeds against fundamental national benefits." Similarly ambiguous is Article 304, which criminalizes "provoking foreign officials to declare war against the Republic of Turkey or insult it." Doğan says if there was no 301, 305 could easily be used to cover most of the hundreds of individuals who have been tried under 301.
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Part of the problem lies in the Turkish public, which is inclined to blow things out of proportion, including opinions that normally are not insidious or even insulting. According to Bıçak, we as a nation are simply "offended too easily." He notes that this is not very helpful in fostering a democratic environment. "Opinions that one does not agree with should be talked about freely," he notes.
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Kardaş agrees that some of the fault ties with our inferiority complex, both as a nation and as individuals. Most of the 301-related cases were based on remarks that it would have been better to simply let go, he says. "None of these needed to be turned into such huge issues. The country is losing so much energy with these cases; we are draining the energy from our authors and intellectuals," he says.
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Penal code is only one-third of it
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Bıçak, who had previously made a list of all articles open to arbitrary interpretation, says in addition to the articles mentioned earlier, Article 300, which criminalizes "denigrating symbols of the sovereignty of the state," is a potential mine that could be detonated by a prosecutor or a judge who is excessively enthusiastic about their patriotism. And such cases are abundant, Bıçak notes. In a court ruling, the crescent and the star drawn on train carriages was taken as an item symbolizing the sovereignty of the state. In another case, a newlywed couple got in trouble when a Turkish flag on their car fell off the bride's car as they drove.
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Other articles of the TCK whose wording is open to manipulation, twisting and using for purposes that had not been intended by the lawmaker are Article 309, which criminalizes "attempting to overthrow the regime set forth by the Republic of Turkey," Article 311 under which "attempting to overthrow by violence the Parliament of the Republic of Turkey" is defined as a crime, Article 299, which criminalizes "uttering insults against the president," Article 323 against "printing false news stories" -- one that can be exploited against the freedom of the press at any time -- Article 341 against "denigrating the flag of a foreign state," Article 115 that prevents "declaration of religious, social political and philosophical beliefs, Article 263 against "education in violation of the law," Article 125 which regulates "crimes against dignity," and Article 217 against "provoking people to disobey the law."
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Bıçak is quick to note that only one-third of the crimes defined under Turkish law are cited in the TCK. "There are many other codes and they all define hundreds of acts as crimes. Two-thirds of the crimes defined in the law are not found in the penal code," Bıçak stated. |
