Newropeans Magazine
June 8 2005
Turkey legalizes the Denial of the Armenian Genocide – 4th Part –
Written by Houry Mayissian
Thursday, 09 June 2005
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.
Vagueness in the article
The problem with article 305 of the new Turkish Penal Code is not
only the limitations it imposes on freedom of expression; the law is
flawed in itself, because it is vague. In its November 13th 2004
issue, The Economist writes: `… an article of the new penal code
approved in September…provides for up to ten years’ jail for those
who engage in unspecified `activities’ against the `national
interest.’ What might such activities be?'(1) The article mentions
the examples included in the explanatory report and questions their
validity.
The fourth paragraph of article 305 specifies that the term
fundamental national interests means `independence, territorial
integrity, national security and the fundamental qualities defined in
the Constitution of the Republic.'(2)
The explanatory report mentions that the function of this last
paragraph is to serve as a `limiting criterion’, because `the concept
of `fundamental national interests’ may be very wide both from the
point of view of its content and its scope.’ The definition given for
`fundamental national interests’ is unclear. Furthermore, even though
several limiting criteria are mentioned in the law, the explanatory
report in no way illustrates how affirmation of the Armenian Genocide
would jeopardize any of the above-mentioned criteria. Moreover, the
law talks about benefits and promises, but does not mention or
clearly define what such benefits might be.
A Violation of freedom of expression
In addition to being flawed, article 305 of the new Turkish penal
code constitutes a serious violation of freedom of expression, an
essential pillar for a democratic society. By legalizing denial of
the Armenian Genocide the Turkish Government not only distorts
historical realities, it also prohibits discussion and affirmation of
the fact of the Armenian Genocide.
The document this article depends upon to make its argument is the
European Convention for the Protection of Human Rights for several
reasons: Turkey adopted the new penal code as a condition by the
European Union to start accession talks; Turkey has ratified this
document in 1954(3); the European Commission and the Parliament have
regarded the article in violation of the said convention.
Article 10 of the European Convention for the Protection of Human
Rights states: `Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority
and regardless of frontiers.'(3) Thus, by banning affirmation of the
Armenian Genocide, the Turkish Government infringes on the freedom to
receive and impart information and ideas, which violates the above
article ratified by the Turkish government itself. Moreover, the
article casts doubt on how seriously the Turkish government respects
the conventions of the European Union, a body it has been trying to
join for long.
Having said the above, it should be acknowledged that in no country
in the world absolute freedom of expression can be ensured.
Furthermore, the concept of freedom of expression in itself is broad
and subject to many interpretations. For this purpose, in addition to
the above Convention, I also base my critique of article 305 on the
theory of Clear and Present Danger.
(1) Haunted by the past. The Economist (2004, November 13). 34-37
(2) Haraszti, M. Review of the Draft Turkish Penal Code: Freedom of
Media Concerns. Retrieved 19-05-2005.
(3) Human Rights Watch. (1999). Violations of free expression in
Turkey