Amendment makes it hard to erase stain of Article 301

An amendment to Article 301 could deprive those accused under the article but not taken to trial the right to defend themselves, experts and analysts caution.

Amendment makes it hard to erase stain of Article 301
An amendment to Article 301 of the Turkish Penal Code (TCK), which penalizes insulting the Turkish identity, could deprive those accused under the article but not taken to trial the right to defend themselves, experts and analysts caution.

Under the proposed change, the approval of the justice minister will be necessary for a prosecutor to proceed with a 301-related investigation. If the justice minister does not allow a 301-related probe, the accused might not have legal troubles, but could still face social pressure for having allegedly insulted Turkishness.

Other changes in the draft include making it a crime to insult the "Turkish nation," instead of the ambiguous term "Turkishness," and lowering the maximum jail sentence for such an insult to two years from three. Although no one has ever been sent to jail on a 301-related charge, the publicity of such cases has done great damage to individuals who were suspects in these trials. Some like, Armenian-Turkish editor Hrant Dink, have paid dearly. Dink, who was tried for insulting Turkish identity in 2006, was shot dead by a militant nationalist in January of last year.

"This takes us back to the pre-2005 version of the article," said Vahit Bıçak, a professor and instructor of criminal law. He recalled that in the old penal code that was in place before 2005, Article 159, the then-equivalent of 301, demanded permission from the Justice Ministry for proceeding with an investigation.

Bıçak likens this situation to that of some deputies who are facing various accusations but cannot appear before a court, despite their declarations that they would like to defend themselves, due to their parliamentary immunities. In other words, the shield of a ministerial refusal to allow a 301 proceeding might work as a weapon, with the potential to turn people against a person who allegedly insulted the Turkish nation.

"The door for them to defend themselves should be left open in the law," Bıçak proposes as a remedy. "A clause saying that in cases where the ministry does not grant permission to go forward with a 301-related accusation, the suspect should have the right to appear before a court upon their request," he explained.

"Otherwise, people who would like to clear their names would have to lobby so that the Ministry of Justice would grant permission to prosecutors to start an investigation against them," Bıçak said, pointing out the absurdity that would emerge in such a case.

Meanwhile, publisher and journalist Ragıp Zarakolu, against whom a case under 301 is pending, told Reuters on Friday that he may still end up in jail for "insulting Turkishness," even after the code is changed.

"Some lawyers and judges feel they have a mission to defend the state and the state ideology rather than the rights of the citizens," Zarakolu told Reuters, reiterating that that the mentality of the members of the judiciary is at the heart of the problems in Turkey related to free speech. Zarakolu's case, as with other ongoing cases of 301, is on hold until the amendment is passed.

Zarakolu is on trial for publishing a translation of a book about the Armenian killings of 1915 at the hands of Ottomans, which Ankara denies amounted to genocide. He told Reuters he expected to get a jail sentence as he already has a suspended sentence for an earlier case.

Ethnic Armenian journalist Dink had also received a suspended sentence under 301 in an article he penned about the killings that called for reconciliation.

Other minefields in the penal code

The Justice Commission on Friday adopted the final draft of the bill amending 301, which makes ministerial permission necessary for investigations, changes the word Turkishness to Turkish nation and lowers the upper limit of jail sentences.

Although few are convinced that changing 301 would stop cases against writers and intellectuals, other experts note that there are many articles in the penal code waiting like time bombs to replace 301 as the next anti-free speech law. Experts point out that Article 216, which criminalizes "inciting people to hatred and hostility," is a plausible candidate.

In an interview with Today's Zaman earlier this month, Erdal Doğan, a lawyer for Dink, had said there are already too many 216-related charges that remain in the background since none of these have so far involved high-profile individuals as in the 301 cases.

Experts also note that similar to 216, Article 288 of the code, which criminalizes making public declarations about an ongoing court case, is frequently abused by ultra-nationalist prosecutors.

The eighth paragraph of Article 220, which criminalizes "propagating an outlawed organization," has frequently been used against declarations, statements and remarks made by Kurdish politicians. Article 222 of the TCK, which criminalizes violating a 1925-dated law on the Turkish alphabet, is simply grounds for prosecuting an individual for using the letters "q," "x" and "w," which are not included in the Turkish alphabet.

Another major obstacle to freedom of speech is Article 318, the crime of "discouraging the public from serving in the army." Article 305 on "engaging in deeds against fundamental national benefits," and Article 304, which criminalizes "provoking foreign officials to declare war against the Republic of Turkey or insult it," are other potential candidates.

Bıçak notes that in addition to the mentality of the judiciary, the ambiguous wording in most articles of the TCK that can be interpreted in many different ways by judges remains a problem.

Other articles of the TCK whose wording is open to manipulation, twisting and using for purposes that had not been intended by the lawmakers are Article 309, which criminalizes "attempting to overthrow the regime set forth by the Republic of Turkey"; Article 311 under which "attempting to overthrow by violence the Parliament of the Republic of Turkey" is defined as a crime; Article 299, which criminalizes "uttering insults against the president"; Article 323 against "printing false news stories" -- one that can be exploited against the freedom of the press at any time; Article 341, against "denigrating the flag of a foreign state"; Article 115, which prevents "declaration of religious, social political and philosophical beliefs"; Article 263 on "education in violation of the law"; Article 125 regulating "crimes against dignity"; and Article 217 on "provoking people to disobey the law."

Today's Zaman


Last Mod: 21 Nisan 2008, 08:06
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