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EspañolARTICLE 301 (TURKISH PENAL CODE)
(Redirected from Article 301)
'Article 301' is a controversial article of the Turkish penal code, taking effect on June 1, 2005, and introduced as part of a package of penal-law reform in the process preceding the opening of negotiations for Turkish membership of the European Union (EU), in order to bring Turkey up to EU standards.[1][2]
It makes it a crime to insult "Turkishness". Since this Article became law, charges have been brought in more than 60 cases, some of which are high-profile.[3]
Article 301 states the following.[4]
# A person who publicly Turkishness, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years.
# A person who publicly denigrates the Government of the Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be punishable by imprisonment of between six months and two years.
# In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.
# Expressions of thought intended to criticize shall not constitute a crime.
Article 301 has been used to bring charges against writer Orhan Pamuk for stating, in an interview with a Swiss magazine, that "Thirty thousand Kurds and a million Armenians were killed in these lands and nobody but me dares to talk about it". The charges were later dropped.[5][6]
In February 2006 the trial opened against five journalists charged with insulting the judicial institutions of the State, and also of aiming to prejudice a court case (Article 288 of the Turkish penal code).[7] Each of the five had criticized a court order to shut down a conference in Istanbul about the Ottoman Armenian casualties in the Ottoman Empire during the First World War. (The conference was nevertheless eventually held after having been transferred from a state university to a private university.[8]) The charges carried a potential penalty of a prison term of up to 10 years. Four of the journalists were acquitted on a technicality, while the fifth, Murat Belge, was acquitted.[9]
Another high-profile case to result from this legislation involved the writer and journalist Perihan Magden, who was prosecuted for a December 2005 newspaper column in which she strongly defended the principle of conscientious objection and the refusal to perform military service. In response to this column, the Turkish military filed a complaint against her.[10] In the trial, which took place on July 27, 2006, she was acquitted when the court ruled that her opinions were covered by the freedom of expression and were not a crime under the Turkish penal code.[11] If convicted she could have faced three years' imprisonment.
In July 2006 the Istanbul public prosecutor's office prepared an indictment alleging that the statements in the book '' by Noam Chomsky and Edward S. Herman constituted a breach of the article.[12] The publisher and editors of the Turkish translation, as well as the translator, were brought to trial accordingly, but acquitted in December 2006.[13]
In 2006 Elif Şafak also faced charges of "insulting Turkishness" because of her latest novel, ''The Bastard of Istanbul.'' The case was thrown out by the judge after a demand by the prosecutor for the case to be dropped.[14]
In 2006, the well-known Armenian-Turkish journalist Hrant Dink was prosecuted under the Article 301 for insulting Turkishness, and received a six month suspended sentence. He was subsequently assassinated on January 19, 2007 in the Istanbul district of Şişli, in front of the offices of the bilingual Turkish-Armenian newspaper Agos. He left behind a wife and three children. Orhan Pamuk declared, "In a sense, we are all responsible for his death. However, at the very forefront of this responsibility are those who still defend article 301 of the Turkish Penal Code. Those who campaigned against him, those who portrayed this sibling of ours as an enemy of Turkey, those who painted him as a target, they are the most responsible in this."[15]
Hrant Dink was posthumously acquitted of the charges on June 14, 2007, in a retrial ordered by the Court of Appeals.[16]
Publisher Ragıp Zarakolu is on trial under Article 301 as well as for “insulting the legacy of Atatürk” under Law 5816.[17]
In December 2005 Joost Lagendijk, a member of the Dutch Green Left party and the European Parliament's Committee on Foreign Affairs, chairman of the EU-Turkey Joint Parliamentary Committee, and a staunch supporter of Turkish EU membership, visited Turkey to attend the trial against Orhan Pamuk. In his speech he commented on the Şemdinli incident and criticized the Turkish military for seeking to maintain its political influence through the continuous guerrilla war with the PKK.
Greater Jurists Union (), the same group that filed a complaint against Orhan Pamuk, filed charges against Joost Lagendijk for violating Article 301 by insulting the Turkish army. The prosecutor, however, declined to prosecute, referring to the Turkish constitution and the European Convention on Human Rights, as well as a judgement by the European Court of Human Rights concerning the interpretation of that Convention.[18]
Members of the Strong Turkey Party organized a campaign of civil disobedience against the article called ''Try me too 301'' (). 301 members of the party knowingly violated the article 301 and filed complaints against themselves. The procecutor refused to file charges.
In its short life the article has been heavily criticized, both in Turkey and outside. A criticism heard in Turkey, and also voiced by some outside, is that it has turned into a tool of the nationalist "old guard", who, so is claimed, use it to press charges against people of international renown, not to stifle dissenting opinions but with the aim of thwarting the admission process to the EU.[19][20] Novelist Elif Şafak claims the Article has a chilling effect on free expression, notwithstanding its fourth clause.[21] It is too early to tell how this is going to be interpreted in cassation (last-instance review) by the Court of Appeals.
Turkey accepts the European Court of Human Rights' decisions as overriding higher court decision, and ratified international treaties as overriding national law.
In their statement "Turkey: Article 301 is a threat to freedom of expression and must be repealed now!",[4] human rights watchdog group Amnesty International claims that "Article 301 poses a direct threat to freedom of expression, as enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)."
Following the murder of Hrant Dink, Turkish deputy prime minister and foreign minister Abdullah Gül declared, "With its current state, there are certain problems with article 301. We see now that there are changes which must be made to this law."[23] Gül suggested on February 23, 2007, that he expects changes to Article 301 in a few weeks.[24]
The AKP government is re-writing the Turkish constitution. The draft includes a requirement that the constitutional court remove laws which contradict international agreements which Turkey is a part of. During the review the constitutional court may remove the article on the grounds that it is in violation of the European Human Rights Agreement.[25]
★ Censorship in Turkey
★ Human rights in Turkey
★ Human rights in Europe
★ International Freedom of Expression Exchange
★ List of prosecuted Turkish writers
1. ''Turkey's new penal code touches raw nerves'' EurActiv 2 June 2005, updated 14 November 2005.
2. Justus Leicht ''Turkey: Court drops prosecution of writer Orhan Pamuk''. February 6, 2006, World Socialist Web Site (published by the ICFI)
3. "In Istanbul, a writer awaits her day in court", The Guardian, July 24, 2006.
4. ''Turkey: Article 301 is a threat to freedom of expression and must be repealed now!'' Amnesty International Public Statement 1 December 2005
5. Sarah Rainsford '' Author's trial set to test Turkey'' BBC 14 December 2005.
6. Court drops Turkish writer's case BBC 23 January 2006
7. ''Writer Hrant Dink acquitted; trials against other journalists continue'' IFEX 9 February 2006
8. Robert Mahoney ''Turkey: Nationalism and the Press'' CPJ 16 March 2006.
9. IFEX. Court Dismisses Charges Against Belge, 9 July, 2006.
10. "A question of conscience: Orhan Pamuk defends Turkey's wittiest and most controversial female columnist" by Orhan Pamuk, ''The Guardian Unlimited'', Books Section, June 3, 2006, accessed June 7, 2006.
11. "Turk court acquits author over remarks on military", Reuters, July 27, 2006.
12. "Noam Chomsky'nin kitabına 'Türklüğü aşağılamak'tan dava" ''Milliyet'' Online, July 4, 2006, accessed July 4, 2006.
13. Turks acquitted over Chomsky book, BBC News, December 20, 2006.
14. "Judge throws out charges against Turkish novelist ", The Guardian, September 22, 2006.
15. Orhan Pamuk: We are all responsible for Dink's death .
16. Hrant Dink finally acquitted
17. http://www.bianet.org/2006/05/01_eng/news78001.htm
18. ''Vrijheid van meningsuiting reden Lagendijk niet te vervolgen'' ("Freedom of expression ground not to prosecute Lagendijk"), in Dutch. February 8, 2006, Web site of Green Left
19. Ekrem Dumanlı ''If it Continues this Way, we won't have any 'Friends' Left''. April 7, 2006, Zaman
20. Aida Edemariam ''Wrestling the Turk's dual spirits''. April 15, 2006, The Age
21. ''Europe Launches Criticism of Law Targeting Journalists in Turkey; Media Victory in High-Profile Terror Case''. November 10, 2006, CNN
22. ''Turkey: Article 301 is a threat to freedom of expression and must be repealed now!'' Amnesty International Public Statement 1 December 2005
23. FM Gul: Changes must be made to article 301
24. Gul says Turkey to proceed with reforms, will amend Article 301 soon
25. New constitution paves way for removal of 301
★ ''Türk Ceza Kanunu'' ("Turkish Penal Code")
★
'Article 301' is a controversial article of the Turkish penal code, taking effect on June 1, 2005, and introduced as part of a package of penal-law reform in the process preceding the opening of negotiations for Turkish membership of the European Union (EU), in order to bring Turkey up to EU standards.[1][2]
It makes it a crime to insult "Turkishness". Since this Article became law, charges have been brought in more than 60 cases, some of which are high-profile.[3]
| Contents |
| What is covered by Article 301 |
| High-profile cases |
| Other high profile incidents |
| Criticism and impact of the article |
| Possible change |
| Possible removal |
| See also |
| References |
| External links |
What is covered by Article 301
Article 301 states the following.[4]
# A person who publicly Turkishness, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years.
# A person who publicly denigrates the Government of the Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be punishable by imprisonment of between six months and two years.
# In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.
# Expressions of thought intended to criticize shall not constitute a crime.
High-profile cases
Turkish writer Orhan Pamuk was brought to trial regarding statements about the Armenian Genocide.
Article 301 has been used to bring charges against writer Orhan Pamuk for stating, in an interview with a Swiss magazine, that "Thirty thousand Kurds and a million Armenians were killed in these lands and nobody but me dares to talk about it". The charges were later dropped.[5][6]
In February 2006 the trial opened against five journalists charged with insulting the judicial institutions of the State, and also of aiming to prejudice a court case (Article 288 of the Turkish penal code).[7] Each of the five had criticized a court order to shut down a conference in Istanbul about the Ottoman Armenian casualties in the Ottoman Empire during the First World War. (The conference was nevertheless eventually held after having been transferred from a state university to a private university.[8]) The charges carried a potential penalty of a prison term of up to 10 years. Four of the journalists were acquitted on a technicality, while the fifth, Murat Belge, was acquitted.[9]
Another high-profile case to result from this legislation involved the writer and journalist Perihan Magden, who was prosecuted for a December 2005 newspaper column in which she strongly defended the principle of conscientious objection and the refusal to perform military service. In response to this column, the Turkish military filed a complaint against her.[10] In the trial, which took place on July 27, 2006, she was acquitted when the court ruled that her opinions were covered by the freedom of expression and were not a crime under the Turkish penal code.[11] If convicted she could have faced three years' imprisonment.
In July 2006 the Istanbul public prosecutor's office prepared an indictment alleging that the statements in the book '' by Noam Chomsky and Edward S. Herman constituted a breach of the article.[12] The publisher and editors of the Turkish translation, as well as the translator, were brought to trial accordingly, but acquitted in December 2006.[13]
In 2006 Elif Şafak also faced charges of "insulting Turkishness" because of her latest novel, ''The Bastard of Istanbul.'' The case was thrown out by the judge after a demand by the prosecutor for the case to be dropped.[14]
In 2006, the well-known Armenian-Turkish journalist Hrant Dink was prosecuted under the Article 301 for insulting Turkishness, and received a six month suspended sentence. He was subsequently assassinated on January 19, 2007 in the Istanbul district of Şişli, in front of the offices of the bilingual Turkish-Armenian newspaper Agos. He left behind a wife and three children. Orhan Pamuk declared, "In a sense, we are all responsible for his death. However, at the very forefront of this responsibility are those who still defend article 301 of the Turkish Penal Code. Those who campaigned against him, those who portrayed this sibling of ours as an enemy of Turkey, those who painted him as a target, they are the most responsible in this."[15]
Hrant Dink was posthumously acquitted of the charges on June 14, 2007, in a retrial ordered by the Court of Appeals.[16]
Publisher Ragıp Zarakolu is on trial under Article 301 as well as for “insulting the legacy of Atatürk” under Law 5816.[17]
Other high profile incidents
In December 2005 Joost Lagendijk, a member of the Dutch Green Left party and the European Parliament's Committee on Foreign Affairs, chairman of the EU-Turkey Joint Parliamentary Committee, and a staunch supporter of Turkish EU membership, visited Turkey to attend the trial against Orhan Pamuk. In his speech he commented on the Şemdinli incident and criticized the Turkish military for seeking to maintain its political influence through the continuous guerrilla war with the PKK.
Greater Jurists Union (), the same group that filed a complaint against Orhan Pamuk, filed charges against Joost Lagendijk for violating Article 301 by insulting the Turkish army. The prosecutor, however, declined to prosecute, referring to the Turkish constitution and the European Convention on Human Rights, as well as a judgement by the European Court of Human Rights concerning the interpretation of that Convention.[18]
Members of the Strong Turkey Party organized a campaign of civil disobedience against the article called ''Try me too 301'' (). 301 members of the party knowingly violated the article 301 and filed complaints against themselves. The procecutor refused to file charges.
Criticism and impact of the article
In its short life the article has been heavily criticized, both in Turkey and outside. A criticism heard in Turkey, and also voiced by some outside, is that it has turned into a tool of the nationalist "old guard", who, so is claimed, use it to press charges against people of international renown, not to stifle dissenting opinions but with the aim of thwarting the admission process to the EU.[19][20] Novelist Elif Şafak claims the Article has a chilling effect on free expression, notwithstanding its fourth clause.[21] It is too early to tell how this is going to be interpreted in cassation (last-instance review) by the Court of Appeals.
Turkey accepts the European Court of Human Rights' decisions as overriding higher court decision, and ratified international treaties as overriding national law.
In their statement "Turkey: Article 301 is a threat to freedom of expression and must be repealed now!",[4] human rights watchdog group Amnesty International claims that "Article 301 poses a direct threat to freedom of expression, as enshrined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)."
Possible change
Following the murder of Hrant Dink, Turkish deputy prime minister and foreign minister Abdullah Gül declared, "With its current state, there are certain problems with article 301. We see now that there are changes which must be made to this law."[23] Gül suggested on February 23, 2007, that he expects changes to Article 301 in a few weeks.[24]
Possible removal
The AKP government is re-writing the Turkish constitution. The draft includes a requirement that the constitutional court remove laws which contradict international agreements which Turkey is a part of. During the review the constitutional court may remove the article on the grounds that it is in violation of the European Human Rights Agreement.[25]
See also
★ Censorship in Turkey
★ Human rights in Turkey
★ Human rights in Europe
★ International Freedom of Expression Exchange
★ List of prosecuted Turkish writers
References
1. ''Turkey's new penal code touches raw nerves'' EurActiv 2 June 2005, updated 14 November 2005.
2. Justus Leicht ''Turkey: Court drops prosecution of writer Orhan Pamuk''. February 6, 2006, World Socialist Web Site (published by the ICFI)
3. "In Istanbul, a writer awaits her day in court", The Guardian, July 24, 2006.
4. ''Turkey: Article 301 is a threat to freedom of expression and must be repealed now!'' Amnesty International Public Statement 1 December 2005
5. Sarah Rainsford '' Author's trial set to test Turkey'' BBC 14 December 2005.
6. Court drops Turkish writer's case BBC 23 January 2006
7. ''Writer Hrant Dink acquitted; trials against other journalists continue'' IFEX 9 February 2006
8. Robert Mahoney ''Turkey: Nationalism and the Press'' CPJ 16 March 2006.
9. IFEX. Court Dismisses Charges Against Belge, 9 July, 2006.
10. "A question of conscience: Orhan Pamuk defends Turkey's wittiest and most controversial female columnist" by Orhan Pamuk, ''The Guardian Unlimited'', Books Section, June 3, 2006, accessed June 7, 2006.
11. "Turk court acquits author over remarks on military", Reuters, July 27, 2006.
12. "Noam Chomsky'nin kitabına 'Türklüğü aşağılamak'tan dava" ''Milliyet'' Online, July 4, 2006, accessed July 4, 2006.
13. Turks acquitted over Chomsky book, BBC News, December 20, 2006.
14. "Judge throws out charges against Turkish novelist ", The Guardian, September 22, 2006.
15. Orhan Pamuk: We are all responsible for Dink's death .
16. Hrant Dink finally acquitted
17. http://www.bianet.org/2006/05/01_eng/news78001.htm
18. ''Vrijheid van meningsuiting reden Lagendijk niet te vervolgen'' ("Freedom of expression ground not to prosecute Lagendijk"), in Dutch. February 8, 2006, Web site of Green Left
19. Ekrem Dumanlı ''If it Continues this Way, we won't have any 'Friends' Left''. April 7, 2006, Zaman
20. Aida Edemariam ''Wrestling the Turk's dual spirits''. April 15, 2006, The Age
21. ''Europe Launches Criticism of Law Targeting Journalists in Turkey; Media Victory in High-Profile Terror Case''. November 10, 2006, CNN
22. ''Turkey: Article 301 is a threat to freedom of expression and must be repealed now!'' Amnesty International Public Statement 1 December 2005
23. FM Gul: Changes must be made to article 301
24. Gul says Turkey to proceed with reforms, will amend Article 301 soon
25. New constitution paves way for removal of 301
External links
★ ''Türk Ceza Kanunu'' ("Turkish Penal Code")
★
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