AMENDMENT TO ARTICLE 301 FOUND UNSATISFACTORY

Today’s Zaman
April 10 2008
Turkey

An amendment to Article 301 of the Turkish Penal Code (TCK) included
in a "democracy package" submitted to Parliament by the ruling party
has not satisfied lawyers.

Article 301 has been criticized for stifling freedom of speech as
it forbids insulting "Turkishness." The amendment proposes changing
"Turkishness" to "Turkish nation," but experts note that there is
no difference in meaning. The amendment also calls for any cases to
be prosecuted under Article 301 to be pre-approved by the president,
though experts say this could create problems in terms of practicality.

They argue that the amendment will not meet the needs on the issue
and that more radical changes to the article are necessary in order
to avert any further problems, adding that the president could be
drawn into political debates because of the new version of the article.

The amendment would decrease the maximum sentence associated with
the article to two years. The amendment makes prosecution related
to the article contingent on the president’s approval and changes
phrases such as "Turkishness" to "Turkish nation" and "republic" to
"Turkish Republic."

Attorney Yucel Sayman does not find the government’s draft amendment
satisfactory. "Changing some words would not change anything
in essence. ‘Turkishness’ implied something more tangible; the
‘Turkish nation’ is fiction — it does not have a definite beginning
or end," Sayman said. He also stressed that requiring the president
to approve cases would create a new post of guardianship, making
it more difficult to judge cases impartially. "Any step other than
completely revoking Article 301 would be tantamount to our democracy
plunging into marshland," he said.

Erdal Doðan, lawyer for the late Turkish-Armenian journalist Hrant
Dink, murdered after he was convicted of violating Article 301,
called the amendment cosmetic. Doðan claimed that articles such as
301 and 305 had to be completely removed from the Constitution. "Even
if you amend an article like 301, what will you do about established
practices and adjudications that we can call racist? And on the other
hand, even if the current president proves sensitive enough to stop any
lawsuits in relation to the article from being filed, the attitude of
his successor will still be uncertain. I do not think that either the
Turkish nation or the Turkish state is so helpless as to need such an
article. The aim should be taking the rulings of the universal court of
human rights as a precedent. The government should act courageously on
this. They should not prepare incomplete democratic packages," he said.

Professor Baskýn Oran, who is also being tried in relation to Article
301, claimed that the Justice and Development Party (AK Party) had
simply ignored Article 301 because it feared neo-nationalists.

Oran maintained that the only real amendment to the article was
the introduction of the president’s approval and that this, too,
was realized to appease everyone for the time being. The condition
of having to have the president’s approval in order to proceed with
cases will prevent prosecutors from opening such cases frequently;
however, if the next president is elected from among neo-nationalists,
that will not be possible, either, Oran noted.

Oran also said that practices in Turkey were at the discretion of
people in power and not of institutions, noting that the amendment
thus had the same quality.

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