Newropeans Magazine
June 6 2005

Turkey legalizes the Denial of the Armenian Genocide – 1st Part –

Written by Houry Mayissian

90 years have passed since Ottoman Turkey committed genocide against
its Christian Armenian subjects in 1915. Although several parliaments
have recognized the Armenian Genocide and many historians have
established that it is a historical fact, the Turkish government
still refuses to acknowledge it. It has, in the past 90 years,
implemented several methods to deny the genocide ever happened. The
latest of these measures was the recent criminalization of the
acknowledgement of the Armenian Genocide in the new Turkish Penal
Code, which took effect on June 1.

As part of the several reforms it adopted during the last few years,
Turkey devised a new Penal Code in September 2004. The adoption of
the code came after much debate and a bitter row between Turkey and
the European Union over a controversial article criminalizing
adultery*. It was a must for Ankara to adopt a new code: the European
Commission threatened that it would advise EU leaders not to start
accession talks with Turkey unless it adopts the new code**. The code
was adopted without the article criminalizing adultery, and the
European Commission welcomed the move*.

Another controversial article, however, article 305* did not receive
much attention and was adopted as part of the Penal Code. The article
`threatens authors with jail sentences over statements that are
construed by government officials to undermine Turkish `national
interests”, and its explanatory report mentions as examples of such
statements recognition of the Armenian Genocide and calls for the
withdrawal of the Turkish Army from Cyprus***.

The full text of article 305 is as follows:

Action against the fundamental national interests

Article 305

1) A citizen who either directly or indirectly accepts from a
foreign individual or organization pecuniary benefits for himself or
for another person in return for engaging in activities against
fundamental national interests or for that reason shall be sentenced
to imprisonment for a term of three to ten years[…]. The same penalty
shall be imposed on the person who provides the benefit or makes the
promise.

2) If the act is committed during wartime or benefit has been
given or promised in order to spread propaganda through the medium of
the press and media, the penalty shall be increased by half.

3) Except in cases where the act is committed during wartime,
the prosecution of the offence shall be subject to the authorization
of the Minister of Justice.

4) Within the meaning of the present article, fundamental
national interests shall mean independence, territorial integrity,
national security and the fundamental qualities defined in the
Constitution of the Republic.****

The explanatory report of the article clarifies that `the article
protects, in general, the fundamental national interests and punishes
those who acquire benefit by making actions against them’*****. The
explanatory report also illustrates each paragraph of the article and
gives further explanations on how they should be interpreted. The
interpretation of the second paragraph of the article is as follows:

`Furthermore, according to this paragraph in case money or benefit or
promises have been accepted for conducting propaganda via
publications and the Media, the penalty will be increased. For
example such as the conducting of propaganda via publications and the
Media, by accepting money or benefit or promises for the withdrawal
of the Turkish troops from Cyprus, or for accepting a solution that
is against Turkey on this issue, or for the genocide of the Armenians
at the end of World War I, aimed only at harming Turkey, contrary to
the historical realities.’*****

Therefore, the article proposes punishments for those who
specifically conduct `propaganda’ in the media and other publications
for the withdrawal of the Turkish army from Cyprus and recognition of
the Armenian Genocide `by accepting money or benefit or promises’.
Furthermore, the article dismisses affirmation of the Armenian
Genocide as propaganda and legalizes its denial, by claiming that
such statements are `aimed only at harming Turkey’ and are `contrary
to the historical realities’.

Current Status of Article 305

The new Turkish Penal Code was supposed to enter into force on 1
April 2005, but in the face of fierce objections to it by Turkish
journalists, lawmakers agreed to postpone its implementation till
June in order to introduce certain amendments (6). It seems, however,
that some of the amendments Turkish lawmakers adopted aims “to
introduce even greater restriction.” (6)

In fact, the correspondent of Irish Times in Istanbul reported on May
5 that just hours before a revised draft of the penal code was
presented to the parliament, three MPs succeeded in extending the
remit of article 305, initially applicable only to Turkish citizens,
to include “foreigners in Turkey.”(7) Amnesty International issued an
action alert on May 13, expressing concern that the new version of
the Turkish Penal Code “may be used to unnecessarily restrict the
freedom of expression.” (6) Amnesty International cited article 305
as well as the amendment proposed to it as examples of breaches of
freedom of expression.

Just days before the law was supposed to take effect on June 1, the
Turkish parliament introduced amendments in response to wide
criticism by the media. Some clauses restricting media freedom were
amended, but there are still restrictions that will raise eyebrows in
Western Europe: criticizing some state institutions is still a
criminal offence, as is publishing material deemed “contrary to
fundamental national interests” – such as suggesting that the
killings of Armenians in World War I was a genocide.'(8)

The Turkish Penal Code thus entered into force on June 1. It is
notable, however, that the code entered into force in its original
version, as President Ahmet Necdet Sezer has not yet approved the
last-minute amendments.(9)

(1) Lungescu, O. Turkey’s quest to join Europe. Retrieved 01-01-2005.

(2) EU demands new Turkish Penal Code. Retrieved 01-01-2005.
(3) The new Turkish Penal Code would criminalize recognition of the
Armenian Genocide. Retrieved 01-01-2005. Some of the initial reports
called the article “article 305”. Later it was established that the
number of the article is 305. The number 305 is used in this paper
throughout.
(4)Haraszti, M. Review of the Draft Turkish Penal Code: Freedom of
Media Concerns. Retrieved 19-05-2005.
(5) Criminalization by Turkey of the Affirmation of the Armenian
Genocide and of the request for a withdrawal of the Turkish troops
from Cyprus. Retrieved 01-01-2005.
(6) Turkey: Freedom of expression/torture/prisoners of conscience.
Retrieved 19-05-2005.
(7) Birch, n. Turkey extends ban on alluding to genocide. Retrieved
19-05-2005.
(8) Dymond, J. Turkey adopts Penal Code reforms. Retrieved
27/05-2005.
(9) EU-sought penal code takes effect in Turkey despite criticism.
Retrieved 02-06-2005.