Article 301 (Turkish penal code)

Article 301 (Turkish penal code)

Article 301 is a controversial article of the Turkish penal code making it illegal to insult Turkey, the Turkish ethnicity, or Turkish government institutions. It took effect on June 1, 2005, and was 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 the Union standards. [" [http://www.euractiv.com/en/enlargement/turkey-new-penal-code-touches-raw-nerves/article-140266 Turkey's new penal code touches raw nerves] ," "EurActiv" 2 June 2005, updated 14 November 2005.] cite web|url=http://www.wsws.org/articles/2006/feb2006/turk-f06.shtml
title=Turkey: Court drops prosecution of writer Orhan Pamuk
first=Justus
last=Leicht
date=2006-02-06
accessdate=2008-07-29
work=World Socialist Web site
publisher=ICFI
] Before the amendments made on April 30, 2008 it used to make 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.Lea, Richard. [http://www.guardian.co.uk/books/2006/jul/24/fiction.voicesofprotest "In Istanbul, a writer awaits her day in court"] , The Guardian, July 24, 2006.] "Büyük Hukukçular Birliği" ("Great Jurists Union") headed by Kemal Kerinçsiz, a Turkish lawyer, is "behind nearly all of Article 301 trials". [http://www.iht.com/articles/ap/2006/09/06/europe/EU_GEN_Turkey_Nationalist_Lawyer.php In Turkey, ultra-nationalist lawyer wins supporters as enthusiasm for the EU falls] (2006-09-06), from Associated Press via "International Herald Tribune"] Kerinçsiz himself is responsible for forty of the trials,cite news
url=http://news.bbc.co.uk/2/hi/europe/5366048.stm
accessdate=2008-07-01
work=BBC News
title=Turkish novelist case collapses
date=2006-09-21
first=Sarah
last=Rainsford
] including the high-profile ones.

On April 30, 2008 a series of changes were made on the Article 301, including a new amendment which makes it obligatory to get the approval of the minister of justice to file a case. [ [http://www.ozgurhaber.com/yonlendir.php?id=2074879&i=CafeSiyaset&b=301-yeni-hali-ile-y%FCr%FCrl%FC%F0e-girdi CafeSiyaset: 301 yeni hali ile yürürlüğe girdi ] ("New version of Article 301 takes effect") tr icon] This change was made to prevent the possible misuse of the article, especially against high profile cases, filling up the legal holes of the older version. [cite web|url=http://www.englishpen.org/writersinprison/bulletins/turkeyarticle301/
title=Turkey: Update on Campaign to Abolish Article 301 - English Pen
accessdate=2008-07-29
date=2008-02-21
work=Writers in Prison Committee Bulletin
publisher=English Pen
]

What was covered by Article 301

Before amendments were made to Article 301 on April 30, 2008, the article stated the following:" [http://www.amnesty.org/en/library/info/EUR44/035/2005 Turkey: Article 301 is a threat to freedom of expression and must be repealed now!] ," Amnesty International Public Statement 1 December 2005]
# A person who publicly denigrates 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

Article 301 has been used to bring charges against writer Orhan Pamuk for stating, in an interview with Swiss magazine "Das Magazin," a weekly supplement to a number of Swiss daily newspapers, including the "Tages-Anzeiger", that "Thirty thousand Kurds have been killed here, and a million Armenians. And almost nobody dares to mention that. So I do." [cite news|title=Der meistgehasste Türke|work=Das Magazin|publisher=Tages Anzeiger|date=2005-02-05|last=Peuwsen|first=Peer|url=http://sc.tagesanzeiger.ch/dyn/news/kultur/560264.html|language=German|quote=Man hat hier 30 000 Kurden umgebracht. Und eine Million Armenier. Und fast niemand traut sich, das zu erwähnen. Also mache ich es.] The charges were later dropped. [cite news|last=Rainsford|first=Sarah|url=http://news.bbc.co.uk/2/hi/europe/4527318.stm|title=Author's trial set to test Turkey|work=BBC|date=2005-12-14] [cite news|work=BBC|url=http://news.bbc.co.uk/2/hi/europe/4637886.stm |title=Court drops Turkish writer's case|date=2006-01-23] Another high profile case to result from this legislation involved the writer and journalist Perihan Magden, who was prosecuted for penning an article originally published in the December 26, 2005 issue of Yeni Aktuel, titled "Conscientious Objection is a Human Right". [cite news|first=Perihan|last=Magden|title=Vicdani Red Bir İnsan Hakkıdır|work=bianet|date=2006-06-07|url=http://www.bianet.org/bianet/kategori/kadin/80142/vicdani-red-bir-insan-hakkidir|language=Turkish] The Turkish military filed a complaint against her in response. [cite news|last=Pamuk|first=Orhan|archivedate=2006-06-03|archiveurl=http://www.network54.com/Forum/273491/message/1149379961/|title=A question of conscience|work=Guardian, Books Section|date=2006-06-03|url=http://books.guardian.co.uk/comment/story/0,,1789061,00.html ] 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. [cite news
url=http://www.washingtonpost.com/wp-dyn/content/article/2006/07/27/AR2006072700716.html
author=Reuters
accessdate=2008-07-11
title=Turk court acquits author over remarks on military
work=Washington Post
date=2006-07-26
] 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. [ [http://www.milliyet.com.tr/2006/07/04/son/sontur14.asp "Noam Chomsky'nin kitabına 'Türklüğü aşağılamak'tan dava"] "Milliyet" Online, July 4, 2006, accessed July 4, 2006.] The publisher and editors of the Turkish translation, as well as the translator, were brought to trial accordingly, but acquitted in December 2006. [ [http://news.bbc.co.uk/2/hi/europe/6198021.stm Turks acquitted over Chomsky book] , BBC News, December 20, 2006.]

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. [ [http://www.guardian.co.uk/world/2006/sep/22/turkey.books "Judge throws out charges against Turkish novelist "] , The Guardian, September 22, 2006.]

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 by radical nationalists. 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." [cite news |title= Orhan Pamuk: We are all responsible for Dink's death |url= http://www.hurriyet.com.tr/english/5817673.asp |work= Hürriyet |date= 2007-01-21 |accessdate= 2007-01-22.] Hrant Dink was posthumously acquitted of the charges on June 14, 2007, in a retrial ordered by the Court of Appeals. [cite news |url=http://www.todayszaman.com/tz-web/detaylar.do?load=detay&link=114125 |title=Hrant Dink finally acquitted |accessdate= 2007-06-15 |date= 2007-06-15 |publisher= Today's Zaman]

Publisher Ragıp Zarakolu is on trial under Article 301 as well as for “insulting the legacy of Atatürk” under Law 5816. [cite news
url=http://www.bianet.org/bianet/kategori/english/78001/endless-trials-of-publisher-zarakolu
accessdate=2008-07-01
first=Erol
last=Önderoğlu
work=Bianet
date=2006-04-20
title=Endless Trials of Publisher Zarakolu
]

In 2007, Arat Dink (Hrant Dink's son) and Serkis Seropyan were convicted to one-year suspended sentences under Article 301 for printing Dink's claims that the killings of Armenians in 1915 was a genocide. [ [http://news.bbc.co.uk/2/hi/europe/7040171.stm Pair guilty of 'insulting Turkey'] , 11 October 2007, BBC.]

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 ( _tr. Büyük Hukukçular Birliği), 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. [ [http://www.groenlinks.nl/europa/nieuws/Nieuwsbericht.2006-02-08.5312/view Vrijheid van meningsuiting reden Lagendijk niet te vervolgen] ("Freedom of expression ground not to prosecute Lagendijk") nl icon. February 8, 2006, Web site of Green Left]

Members of the Strong Turkey Party organized a campaign of civil disobedience against the article called "Try me too 301" ( _tr. Beni de yargıla 301). 301 members of the party knowingly violated the article 301 and filed complaints against themselves. The prosecutor 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. [cite news
url=http://www.turkishdailynews.com.tr/article.php?enewsid=100473
accessdate=2008-07-11
first=Terry
last=Davis
authorlink=Terry Davis (politician)
title=Modernity must be protected through modern means
work=Turkish Daily News
date=2008-03-31
] 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. [cite news
url=http://www.todayszaman.com/tz-web/yazarDetay.do?haberno=28098
title=If it Continues this Way, we won't have any 'Friends' Left
work=Zaman
date=2005-12-29
accessdate=2008-07-11
last=Dumanlı
first=Ekrem
] [Edemariam, Aida. " [http://www.theage.com.au/news/books/wrestling-the-turks-dual-spirits/2006/04/13/1144521447497.html Wrestling the Turk's dual spirits] ". April 15, 2006, The Age] Novelist Elif Şafak claims the Article has a chilling effect on free expression, notwithstanding its fourth clause. [" [http://transcripts.cnn.com/TRANSCRIPTS/0611/10/i_c.01.html Europe Launches Criticism of Law Targeting Journalists in Turkey; Media Victory in High-Profile Terror Case] ", "CNN". November 10, 2006] 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.

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)."

Current status

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." [cite news |title= FM Gul: Changes must be made to article 301 |work= Hürriyet |date= 2007-01-25 | url= http://hurarsiv.hurriyet.com.tr/goster/haber.aspx?id=5835918 |accessdate= 2007-01-28]

On April 30, 2008, article 301 was amended by the Parliament of Turkey, with the following changes: [cite news |work=Today's Zaman |accessdate=2008-05-01 |date=2008-04-30 |url=http://www.todayszaman.com/tz-web/detaylar.do?load=detay&link=140606 |title=EU welcomes 301 amendment but calls for more]
* replacement of the word "Turkishness" with the phrase "Turkish nation" (in the phrase "insulting Turkishness").
* reduction of the maximum penalty from three years to two.
* requiring permission of the justice minister to file a case. The permission procedure of Article 301 will be carried out by the Directorate General of the Penal Affairs of the Ministry of Justice where competent judges are assigned. Even if a criminal investigation is launched upon the permission of the Minister of Justice, the prosecutor still has discretionary power to decide not to prosecute. Such a decision was made in the July 2008 case against İbrahim Tığ, the editor of the daily Bölge Haber.cite news
url=http://www.bianet.org/english/kategori/english/108226/justice-ministry-refuses-article-301-case
accessdate=2008-07-11
work=Bianet
date=2008-07-10
title=Justice Ministry Refuses Article 301 Case
first=Erol
last=Önderoglu
] [cite news
url=http://www.bolgehaber67.com/detayhaber.asp?id=1365
title=Gazetemiz Yazıişleri Müdürü Tığ’i Valilik Şikayet Etti, Bakanlık 'Dur' Dedi
language=Turkish
work=Devrek Bölge Haber
accessdate=2008-07-12
date=2008-07-06
] The governor of Zonguldak filed a complaint citing "open denigration of the government" (“T.C. Hükümetini Alenen Aşağılamak”) after Tığ wrote a column accusing the ruling Justice and Development Party of selling the country's assets though privatization. [cite news
url=http://www.bolgehaber67.com/yazar.asp?yazar=detay&id=679
accessdate=2008-07-12
date=2008-03-14
first=İbrahim
last=Tığ
work=Devrek Bölge Haber
title=İşte Vatanı ve Mallarını Satanlar
language=Turkish
] As of July 2008, six of the seven 301 cases that have been considered by the ministry were rejected for prosecution.

According to the Turkish legal system, international conventions on human rights automatically become part of the national legal order without additional transposition once they are adopted by the Parliament. Hence, international human rights instruments to which Turkey is party have to be taken into consideration by judges and prosecutors in dealing with cases in accordance with Article 90 of the Constitution.Fact|date=July 2008 Therefore, prosecutors are strongly encouraged to directly apply the landmark decisions of the European Court of Human Rights and particularly the [http://www.robin.no/~dadwatch/echr/handy.html Handyside v. UK] case.Fact|date=July 2008 Furthermore, the statement of the suspect cannot be taken before the permission of the Minister of Justice in order not to discredit the suspect in the eyes of the public.

ee also

*Censorship in Turkey
*Human rights in Turkey
*International Freedom of Expression Exchange
*List of prosecuted Turkish writers

References

External links

* [http://www.tbmm.gov.tr/kanunlar/k5237.html Turkish Penal Code] – current as of 26 September 2004 tr icon
* Miklos, Harazti (May 2005). PDFlink| [http://www.osce.org/documents/rfm/2005/03/14223_en.pdf Review of the Draft Turkish Penal Code: Freedom of Media Concerns] |121 KiB , OSCE. Vienna.


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