301 CONCERNS RESURFACE IN DINK TRIAL
Ercan Yavuz

Today’s Zaman, Turkey
Oct 2 2007

The Ýstanbul 14th Criminal Court on Monday resumed the trial of
suspects in the killing of Turkish Armenian journalist Hrant Dink
in a case that brought up discussions on the Turkish Penal Code’s
(TCK) Article 301, under which Dink was convicted and which is also
seen as a test of the judiciary in investigating possible negligence
by authorities.

Demonstrators at his funeral in January carried banners reading "301
is the murderer," after Dink was shot dead in broad daylight in front
of his newspaper Agos’ office. "Hrant Dink’s death is linked to 301,"
said Claudia Roth, a leader of the German opposition Greens, who
is in Ýstanbul to attend the hearing. "It was 301 that killed him,
and that’s why I am here."

European Commissioner for Enlargement Olli Rehn also made a statement
on Monday emphasizing the EU’s sensitivity about changing 301. He
said the European Union has been waiting for a change since 2004 and
called on the government to either abolish the article or review it
as necessary without further delay.

Article 301, which criminalizes "insulting Turkishness," is seen
as a serious obstacle to freedom of speech in Turkey by Turkish
intellectuals and the European Union. In addition to Dink, Nobel
Prize winner Orhan Pamuk and novelist Elif Þafak stood trial under
Article 301; however, the government has still not made any visible
moves to amend it.

But that situation might be changing, sources close to the government
indicate, claiming that the Justice and Development Party (AK Party)
is considering changes to the infamous article. The AK Party has
reportedly sought alternative texts for the article from two prominent
jurists, Former dead of the Supreme Court of Appeals Sami Selcuk and
Professor Ýzzet Ozgenc, one of the architects of the TCK.

The government is now expected to replace Article 301 by one of two
alternative texts, or combine the two, which are very similar, in a
new paragraph.

One of the points common to Article 301 in the alternative paragraphs
proposed by Selcuk and Ozgenc is replacing the concept of "Turkishness"
with the word "Turkish nation," and replacing the word "Republic,"
with the expression "the State of the Turkish Republic."

Both jurists believe that prosecutors should require special
permission from a higher authority to start a probe under 301, but the
authorities they point to differ significantly. While Selcuk believes
this authority should lie with the president as the head of state,
Professor Ozgenc defends that it should lie with the minister of
justice, as it previously used to. In January of last year, the
government requested all civil society organizations to agree on
an alternative paragraph to modify the article, but civil groups
failed to reach consensus on a single text. Most experts propose one
of two possible methods to alleviate the problems caused by 301. A
number of legal experts and a significant number of civil society
organizations would like to see the article abolished entirely. The
European Union is also of that opinion. A second opinion is to amend
the article instead of removing it from the penal code, which is what
the government is likely to opt for.

What does 301 say?

1. Public denigration of Turkishness, the Republic or Parliament
shall be punishable by imprisonment of six months to three years. 2.

Public denigration of the Government of the Republic of Turkey,
the judicial institutions of the State and the military and police
structures shall be punishable by imprisonment of six months to
two years.

Selcuk’s proposal

The version put forward by the former head of the Supreme Court of
Appeals is said to be the most appealing to the government. Selcuk
asserts that the expression "the Turkish nation," should replace the
word "Turkishness" in the original text. The Turkish nation, Selcuk
says, is defined as a group of people linked to the state through the
bond of citizenship. In addition, Selcuk proposes to replace the word
Republic with "the State of the Republic of Turkey." He also offers
rephrasing the words "the Parliament of Turkey, the Government of
the Republic of Turkey and the judicial institutions of the State,"
to "the organs of the legislature, the executive and the judiciary."

Selcuk also proposes that the phrases "military or police structures"
to be changed to "military, security and forces concerned with
security."

Selcuk says presidential permission should be required to conduct a
trial under 301.

Ozgenc’s proposal

Professor Ozgenc has already submitted his version of the text to the
head of the AK Party parliamentary group, Sadullah Ergin. Ozgenc’s
text is similar to that of Selcuk insofar as it asserts that the term
Turkishness be replaced with "the Turkish nation." However, unlike
Selcuk, Ozgenc proposes that the authority to grant permission for a
prosecutor to start a 301 investigation should be held by the justice
minister, as was the case under the previous penal code.

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