Article 301 (Turkish penal code) - AbsoluteAstronomy.com

Article 301 is a controversial article of the Turkish

Turkey

Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...

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

Accession of Turkey to the European Union

Turkey's application to accede to the European Union was made on 14 April 1987. Turkey has been an associate member of the European Union and its predecessors since 1963...

of the European Union

European Union

The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...

(EU), in order to bring Turkey up to the Union standards.
The original version of the article made it a crime to "insult

Insult

An insult is an expression, statement which is considered degrading and offensive. Insults may be intentional or accidental...

Turkishness"; on April 30, 2008, the article was amended to change "Turkishness" into "the Turkish nation". Since this article became law, charges have been brought in more than 60 cases, some of which are high-profile. The Great Jurists Union headed by Kemal Kerinçsiz

Kemal Kerinçsiz

Kemal Kerinçsiz is a Turkish lawyer, famous for filing complaints against more than 40 Turkish journalists and authors for "insulting Turkishness"...

, a Turkish lawyer, is "behind nearly all of Article 301 trials". Kerinçsiz himself is responsible for forty of the trials, 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. 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.

What was covered by Article 301

Before amendments were made to Article 301 on April 30, 2008, the article stated the following:

A person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey
Grand National Assembly of Turkey
The Grand National Assembly of Turkey , usually referred to simply as the Meclis , is the unicameral Turkish legislature. It is the sole body given the legislative prerogatives by the Turkish Constitution. It was founded in Ankara on 23 April 1920 in the midst of the Turkish War of Independence...

, 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

Orhan Pamuk

Ferit Orhan Pamuk , generally known simply as Orhan Pamuk, is a Turkish novelist. He is also the Robert Yik-Fong Tam Professor in the Humanities at Columbia University, where he teaches comparative literature and writing....

for stating, in an interview with Swiss magazine Das Magazin, a weekly supplement to a number of Swiss daily newspapers, including the Tages-Anzeiger
Tages-Anzeiger
Tages-Anzeiger, also abbreviated Tagi or TA, is a German language Swiss national daily newspaper based in Zurich. Among newspapers in Switzerland, it has one of the largest readerships, reaching around 550,000 readers. The Tages-Anzeiger was first published in 1893...

, that "Thirty thousand Kurds have been killed here, and a million Armenians. And almost nobody dares to mention that. So I do." The charges, which were brought against Pamuk upon a complaint filed by Kemal Kerinçsiz

Kemal Kerinçsiz

Kemal Kerinçsiz is a Turkish lawyer, famous for filing complaints against more than 40 Turkish journalists and authors for "insulting Turkishness"...

, were later dropped after the Justice Ministry refused to issue a ruling as to whether the charges should stand.

In February 2006 the trial opened against five journalists charged with insulting the judicial institutions of the State under Article 301, and also of aiming to prejudice a court case under Article 288 of the Turkish Penal Code. Each of the five had criticized a court order to shut down a conference in Istanbul

Istanbul

Istanbul , historically known as Byzantium and Constantinople , is the largest city of Turkey. Istanbul metropolitan province had 13.26 million people living in it as of December, 2010, which is 18% of Turkey's population and the 3rd largest metropolitan area in Europe after London and...

about the Ottoman Armenian casualties

Ottoman Armenian casualties

Ottoman Armenian casualties refers to the number of deaths of Ottoman Armenian people between 1914 to 1923. The Republic of Armenia and several other nations recognize the deaths to have occurred during an Armenian Genocide.Most estimates of related Armenian deaths between 1915 to 1918 range from...

in the Ottoman Empire

Ottoman Empire

The Ottoman EmpireIt was usually referred to as the "Ottoman Empire", the "Turkish Empire", the "Ottoman Caliphate" or more commonly "Turkey" by its contemporaries...

during the First World War. (The conference was nevertheless eventually held after having been transferred from a state university to a private university.) The charges carried a potential penalty of a prison term of up to 10 years. The court dropped the charges against four of them on April 11, 2006 when it was determined that the time allowed by the statute of limitation had been exceeded, while Murat Belge

Murat Belge

Murat Belge is an outspoken left-liberal Turkish intellectual, academic, translator, literary critic, columnist, civil rights activist, and occasional bull fighter.- Career :...

, the fifth, was acquitted on June 8, 2006.

Another high profile case to result from this legislation involved the writer and journalist Perihan Mağden

Perihan Magden

Perihan Mağden is a Turkish writer, known for her wit. She is currently a columnist for the newspaper Taraf. She was tried and acquitted for calling for opening the possibility of conscientious objection to mandatory military service in Turkey....

, 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". The Turkish military filed a complaint against her in response. 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. 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 Manufacturing Consent by Noam Chomsky

Noam Chomsky

Avram Noam Chomsky is an American linguist, philosopher, cognitive scientist, and activist. He is an Institute Professor and Professor in the Department of Linguistics & Philosophy at MIT, where he has worked for over 50 years. Chomsky has been described as the "father of modern linguistics" and...

and Edward S. Herman

Edward S. Herman

Edward S. Herman is an American economist and media analyst with a specialty in corporate and regulatory issues as well as political economy and the media. He is Professor Emeritus of Finance at the Wharton School of the University of Pennsylvania. He also teaches at Annenberg School for...

constituted a breach of the article. The publisher and editors of the Turkish translation, as well as the translator, were brought to trial accordingly, but acquitted in December 2006.

In 2006 Elif Şafak

Elif Safak

Elif Şafak , is a Turkish writer who writes in both Turkish and English. Her books have been translated into more than thirty languages.-Fiction:...

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.

In 2006, the well-known Armenian-Turkish journalist Hrant Dink

Hrant Dink

Hrant Dink or Հրանտ Դինք ) was a Turkish citizen of Armenian descent editor, journalist and columnist....

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."
Hrant Dink was posthumously acquitted of the charges on June 14, 2007, in a retrial ordered by the Court of Appeals.

Publisher Ragıp Zarakolu

Ragip Zarakolu

Ragıp Zarakolu is a Turkish human rights activist and publisher who has long faced legal harassment for publishing books on controversial subjects in Turkey, especially on minority and human rights in Turkey.- Biography :...

is on trial under Article 301 as well as for “insulting the legacy of Atatürk” under Law 5816.

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. (See Armenian Genocide

Armenian Genocide

The Armenian Genocide—also known as the Armenian Holocaust, the Armenian Massacres and, by Armenians, as the Great Crime—refers to the deliberate and systematic destruction of the Armenian population of the Ottoman Empire during and just after World War I...

.)

In 2008, Rahîm Er

Rahîm Er

Rahîm Er is a Turkish author and lawyer. He is currently the chairman of board of BKY-Babıali Kültür Yayıncılığı A.Ş, a publishing company based in İstanbul and also the owner of Haber Kuşağı , an online Turkish newspaper.-Biography:After graduating from Adana Erkek Lisesi in 1969, he graduated...

, a columnist of Turkiye daily newspaper was convicted under Article 301 for criticising the Court of Cassation of Turkey

Turkey

Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...

. Er was criticising the Court of Cassation because of the length of trials, its heavy backlog, and the hidden resistance to the establishment of regional courts of appeals in Turkey

Turkey

Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...

. He was charged with insulting an institution of the Republic of Turkey by chief public prosecutor's office in Bakırköy

Bakirköy

This article is about a neighbourhood in IstanbulBakırköy is a neighborhood, municipality and district on the European side of İstanbul, Turkey. The quarter is densely populated, has a residential character and is inhabited by a middle class population...

. This prosecution was stroke out by the dismissal of Mehmet Ali Şahin

Mehmet Ali Sahin

Mehmet Ali Şahin is a Turkish politician. He was the Speaker of the Parliament of Turkey between 2009 and 2011....

, the minister of justice.

Other high profile incidents

In December 2005 Joost Lagendijk, a member of the Dutch

Netherlands

The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...

GreenLeft

GreenLeft is a green political party operating in the Netherlands.GreenLeft was formed on 1 March 1989 as a merger of four left-wing political parties: the Communist Party of the Netherlands, Pacifist Socialist Party, the Political Party of Radicals and the Evangelical People's Party...

party and the European Parliament

European Parliament

The European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...

's Committee on Foreign Affairs

Committee on Foreign Affairs (EU)

The Committee on Foreign Affairs , previously called Political Affairs, is a committee of the European Parliament...

, chairman of the EU

European Union

-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

European Convention on Human Rights

The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

, as well as a judgement by the European Court of Human Rights

European Court of Human Rights

The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

concerning the interpretation of that Convention.

Members of the Strong Turkey Party

Strong Turkey Party

Strong Turkey Party is a political party in Turkey headed by Tuna Bekleviç....

organized a campaign of civil disobedience

Civil disobedience

Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance...

against the article called Try me too 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. A criticism heard in Turkey, and also voiced by some outside, is that it has turned into a tool of the nationalist

Nationalism

Nationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...

"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. Novelist Elif Şafak claims the Article has a chilling effect on free expression, notwithstanding its fourth clause. 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

European Court of Human Rights

' decisions as overriding higher court decision, and ratified international treaties as overriding national law.

Amnesty International

Amnesty International

Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...

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

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

(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

Abdullah Gül

Dr. Abdullah Gül, GCB is the 11th and current President of the Republic of Turkey, serving in that office since 28 August 2007. He previously served for four months as Prime Minister from 2002-03, and as Minister of Foreign Affairs from 2003-07....

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."

On April 30, 2008, article 301 was amended by the Parliament of Turkey, with the following changes:

replacement of the word "Turkishness" with the phrase "the Turkish Nation" (so "denigration of Turkishness" became "denigration of the Turkish Nation");
reduction of the maximum penalty from three years to two;
removal of the special provision aggravating the punishment for denigration when committed by a Turkish citizen in another country;
requiring permission of the justice ministry to file a case. The permission procedure of Article 301 will be carried out by the Directorate General of the Criminal Affairs of the Ministry of Justice where competent judges are seconded to the Ministry. 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.

Permission was refused by the justice ministry in the July 2008 case against İbrahim Tığ, the editor of the daily Bölge Haber. 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

Justice and Development Party (Turkey)

The Justice and Development Party , abbreviated JDP in English and AK PARTİ or AKP in Turkish, is a centre-right political party in Turkey. The party is the largest in Turkey, with 327 members of parliament...

of selling the country's assets though privatization. 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 ratified by the Parliament. International human rights instruments to which Turkey is party have to be taken into consideration by judges and prosecutors. Therefore, prosecutors are strongly encouraged to directly apply the landmark decisions of the European Court of Human Rights

European Court of Human Rights

and particularly the Handyside v. UK case. 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.

External links

Turkish Penal Code – current as of September 26, 2004
Amendment to Article 301 – Law Nr. 5759 of April 30, 2008
Miklos, Harazti (May 2005). , OSCE. Vienna.

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

What was covered by Article 301

High-profile cases

Other high profile incidents

Criticism and impact of the article

Current status

See also

External links