Article 301 (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 negotations 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]
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Article 301 states the following:
1. 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.
2. 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.
3. In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.
4. Expressions of thought intended to criticize shall not constitute a crime.
[edit] High-profile cases
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 criticised 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]) Four of the journalists were acquitted on a technicality, while as of April 2006 the fifth, Murat Belge, remains on trial.[9] If found guilty he faces a prison term of up to 10 years.
Another recent high-profile case to result from this legislation involves the writer and journalist Perihan Magden, who faces prosecution in relation to 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.
More recently, it is reported that Istanbul public prosecutor's office had prepared an indictment alleging that the statements in the book Manufacturing Consent by Noam Chomsky and Edward S. Herman constituted a breach of the article. Publishers of the Turkish translation are also to be brought to trial accordingly. [12]
In 2006 Elif Shafak also faced charges of "insulting Turkishness" because of her latest novel, The Bastard of Istanbul.[3] The case was thrown out by the judge after a demand by the prosecutor for the case to be dropped.[13]
Publisher Ragıp Zarakolu is on trial under Article 301 as well as for ?insulting the legacy of Atatürk? under Law 5816. [1]
[edit] 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 and speak at an event for the Green Party of Turkey. 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.[2] Turkish Lawyers Association, 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.[14]
[edit] 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.[15][2][16] Whatever the case, it is clear that 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' decisions as overriding higher court decision, and ratified international treaties as overriding national law.
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