TURKEY: GOVERNMENT AMENDMENTS WILL NOT PROTECT FREE SPEECH

Reuters
April 18 2008

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(Istanbul, April 17, 2008) The government’s proposed revision to the
infamous Article 301 of the Turkish Penal Code, which has been used to
investigate and prosecute hundreds of people for peacefully expressing
themselves, will not remove the article’s restrictions on free speech,
Human Rights Watch said today. The government’s draft revision of
the article is likely to be considered by the Turkish parliament in
the coming days. Since the article’s adoption in June 2005, writers,
broadcasters, academics, politicians, artists, representatives of
civil society, and public figures across the political spectrum have
been, and continue to be investigated and prosecuted for comments
"publicly denigrating Turkishness, the Republic, the Parliament … the
Government, judicial institutions, military or security organizations
of the state."

"Article 301 should have been abolished a long time ago. The revisions
proposed by the government will not change the fundamental flaws in
the law," said Holly Cartner, Europe and Central Asia director of
Human Rights Watch. "The government’s half-hearted revision is a real
disappointment. The government has missed an important opportunity
to reinvigorate the reform process and underscore its commitment to
free speech."

Prosecutors broadly interpret the vaguely worded article and use it
against those who have raised human rights issues or debated matters
of history and politics.

Civil society groups have long called for the repeal of Article 301
and similar provisions in the Penal Code and Anti-terror Law that
allow prosecution of peaceful expression. Finally, under intense
pressure from the European Union, the government submitted the
proposed rewording of Article 301, which is expected to be adopted
by the parliament next week.

However, the government’s proposal merely tinkers with the wording
of the law, while maintaining its most problematic features. It
substitutes "Turkishness" with "Turkish nation," and the Republic with
"the Republic of Turkey." The government does propose a reduction
of the maximum sentence from three to two years of imprisonment,
which means that the sentence would be automatically suspended for
first-time offenders. However, someone with a second conviction could
face imprisonment. Under the proposed revision, the president would be
responsible for granting permission for prosecutors to proceed with
a prosecution. (In the past, the Minister of Justice was responsible
for authorizing investigation under Article 159, 301’s predecessor in
the previous Penal Code.) Additionally, the revised article removes
the current requirement that the sentence be increased by one-third
when the crime is committed abroad.

The government has repeatedly argued that laws similar to Article
301 exist in other European countries and that Turkey needs such a
law. However, the government fails to note that in those countries
such antiquated laws are rarely if ever used. The situation is
entirely different in Turkey. According to figures supplied by
Turkey’s Ministry of Justice, 1,533 individuals stood trial under
Article 301 during 2006; the comparable figure for the first quarter
of 2007 was 1,189. In any event, the European Convention on Human
Rights allows for state interference in free speech only in strictly
limited circumstances. Criminal prosecution of persons for exercising
their freedom of speech in an entirely peaceful way is a violation
of the European Convention.

The draft revision of Article 301 has been sent by the speaker of
the Turkish Parliament to the Parliamentary Justice Commission. If
the commission approves it, the draft will then be submitted to
parliament and then on to the president. The main opposition parties
(the Republican Peoples’ Party and the Nationalist Action Party)
have stated their strong opposition to any alteration of Article 301,
including even the cosmetic changes proposed by the government.

Article 301 achieved particular notoriety when journalist and
human rights defender Hrant Dink was prosecuted three times,
receiving a six-month suspended prison sentence in July
2006. The repeated prosecution and conviction under Article
301 appears to have made Dink a target of nationalist groups
as an Armenian traitor who had been convicted for "publicly
denigrating Turkishness." Dink was assassinated in January 2007
( y17817.htm). Although
few others have actually been convicted, many who were prosecuted �
including novelist Orhan Pamuk in 2005 � found themselves harassed
by ultra-nationalist groups at court hearings.

"The history of 301 is a tragic one. It is a cruel irony that the
government has found it impossible to take a principled position
and repeal this law," Cartner said. "The real reason to repeal 301 is
because Turkey’s citizens deserve the right to be able to speak, write,
and publish freely and peacefully on all issues, without the threat
of criminal investigation or other harassment under cover of this law."

There are also many other laws in Turkey that are used to restrict free
speech through criminal prosecutions and investigations including:
The Anti-terror Law and related articles in the Turkish Penal Code;
The law on crimes against Atat�rk;

Many articles of the Penal Code including Article 318: alienating
people from military service; Article 288: the attempt to influence
a fair trial; and Article 216: inciting enmity and hatred among
the population on the basis of social class, race, religion, sect,
language or regional differences.

One of the major problems in Turkey is that prosecutors and judges
do not interpret these restrictions on freedom of speech narrowly,
as required by the European Convention on Human Rights.

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