URGENT ACTION

Turkey: Freedom of expression/torture/prisoners of conscience

n&of=ENG-TUR

PUBLIC AI Index: EUR
44/016/2005
13 May 2005

UA 121/05 Freedom of expression/torture/prisoners of
conscience

TURKEY Writers, journalists, human rights defenders

A new version of the Turkish Penal Code (TPC) currently before the
Turkish parliament for approval may be used to unnecessarily restrict
the right to freedom of expression and could result in people being
jailed as prisoners of conscience. It also leaves open the possibility
of discrimination on grounds of sexual orientation within the law,
and retains obstacles to prosecutions for torture.

The new TPC has been presented as a reforming measure designed to
improve human rights protection in Turkey, as it attempts to bring its
laws into line with the requirements for membership of the European
Union. While the new TPC does propose many positive changes – for
example, it increases the punishment for those convicted of torture –
it contains numerous restrictions on fundamental rights. Provisions
covering freedom of expression, which have been used in the past
to prosecute people or imprison them as prisoners of conscience,
remain. Article 159 of the old TPC, which criminalized acts that
“insult or belittle” various state institutions, is one that Amnesty
International has repeatedly called on the authorities to abolish. It
reappears as Article 301 of the new TPC in the section entitled
“Crimes against symbols of the state’s sovereignty and the honour of
its organs” (Articles 299 – 301). Amnesty International is concerned
that this section could be used to criminalize legitimate expression
of dissent and opinion.

New articles have been introduced which appear to introduce
restrictions to fundamental rights. Article 305 of the new TPC
criminalizes “acts against the fundamental national interest”. The
explanation attached to the draft, when the law was first presented to
Parliament, provided as examples of such crimes, “making propaganda for
the withdrawal of Turkish soldiers from Cyprus or for the acceptance
of a settlement in this issue detrimental to Turkey… or, contrary
to historical truths, that the Armenians suffered a genocide after the
First World War.” Amnesty International considers that the imposition
of a criminal penalty for any such statements – unless intended or
likely to incite violence – would be a clear breach of international
standards safeguarding freedom of expression.

The law was supposed to enter into force on 1 April 2005. However,
in the face of forceful objections by Turkish journalists that the TPC
could be used to greatly restrict their activities and even imprison
them, the government agreed to delay this until 1 June 2005 in order
to make amendments. On 3 May, the ruling Justice and Development
[AK] party submitted its proposed changes to the draft TPC. While
some small changes have been made – mainly the removal of provisions
that allowed for increased sentences when breaches of the code took
place in the media – most of the restrictive articles remain and
have not been changed. In at least one instance, the ruling party is
apparently trying to introduce even greater restrictions: for example,
the proposal suggests that Article 305 should be altered to explicitly
allow for the prosecution of “foreigners” as well as Turkish citizens

Article 122 of the draft, which forbids discrimination on the basis
of “language, race, colour, gender, political thought, philosophical
belief, religion, denomination and other reasons” originally listed
“sexual orientation”, but this was removed from the draft at the
last moment. Amnesty International is therefore concerned that
discrimination on the basis of sexuality is not criminalized in the
new law.

In addition, Amnesty International is concerned that the statute
of limitations (the time limit) still applies in trials of people
accused of torture. While the new law has extended this time limit
from seven-and-a-half years to 10 years, it is common for trials
of alleged torturers to be deliberately protracted and ultimately
abandoned because of this provision, thereby contributing to a
climate of impunity. Given the frequency with which this happens,
Amnesty International considers that there should be no statute of
limitations for the crime of torture.

AI Index: EUR 44/016/2005 13 May 2005