The proposal to amend Article 301 of the Turkish Penal Code on 7 April 2008 by a group of Justice and Development Party MPs will not clear the barrier against freedom of expression that the article creates. Article 301 of the Turkish Penal Code was used to try 2724 individuals, 14 of them children, during 2006 and 2007 according to the data from Ministry of Justice.
Although the justification text of the amendment proposal states that “freedom of expression is evaluated as one of the fundamental rights and freedoms, has been a subject of several international documents and protected in our Constitution. Article 19 of Universal Declaration of Human Rights, Article 10 of European Convention on Human Rights, and Article 25 and Article 26 of the Constitution includes detailed protective and regulatory clauses,” the content of the article is in conflict with this justification.
Democracy means an environment where no institution, concept and ideology are tabooed. Article 301 can be interpreted in a way which creates taboos on the values and institutions it protects. That’s why the cases charged during last few years this idea of taboos is monitored to be the core. These kinds of tabooing bring an authoritarian aspect to the regime and, therefore, the balance of freedoms and order will be broken against freedoms. The proposed amendment in Article 301 is not eliminating the idea of tabooing which the article creates in the current situation.
In the proposition, the upper level of punishment is withdrawn to the level postponement by lowering it from 3 years to 2 years. By withdrawing the punishment to the level of postponement, the abridgement of individual liberty will be within the powers of the judges. On the other hand, if a similar act occurs in the postponement period, the individual will be subjected to both first and second punishments. This amendment is not only limiting freedom of expression but also putting a self imposed censorship on the process of idea development.
Also, it is proposed to change the word “Turkishness” into “Turkish Nation,” and the word “Republic” into “Republic of Turkey.” It is not very hard to understand that these amendments on the words will not expand the space for freedom of expression as the accusations prepared by the public prosecutors and the Criminal Chamber of the Court of Appeals. The word “Turkishness” has already been understood as the “Turkish Nation” by the Criminal Chamber and final judgements were charged based on this view. (See also the decision of the Criminal Chamber of Court of Appeals in Hrant Dink case.)
Moreover, there is no explanation about what is the Turkish Nation and according to which criteria it is defined. It is clear that an ethnic and cultural definition of nation will feed an offensive nationalism which will hurt the citizen without different ethnic and cultural origins and ease suppression of them. This is what happened because of Article 301. The proposed amendment will not solve the problems that Article 301 caused, moreover it will deepen them. Until today, the court decisions based on the article’s concept of Turkishness had no hesitation to think about the content of this concept. Now, there is no reason for the courts to assume that the concept of Turkish Nation which has been replaced with Turkishness is different than the before, and evaluate the cases in new grounds.
Freedom of thought is the freedom to not to think same as the state. Freedom of thought is a fundamental component of and must for the democratic system as a freedom which includes questioning the established system, condemning it when necessary, and charging it. If individual freedom does not include supporting and defending ideas which are not approved by the majority and choosing a way of life different than majority, it has no meaning.
The proposed amendments in Article 301 do not change the material nature of the crime. The only thing changing is the method to be implied on this material nature.
The damage Article 301 causes is not only from the court decisions, but also from a social pressure based on status quo being directed to opposition. Hrant Dink has been given a prison a sentence, but the worse is he has been murdered as a result of the atmosphere that this court case created. This stamping process will not be less weak in the applications for the Presidential approval. The opposing figures will be more targeted, and most probably the President will be put under pressure.
For all these reasons, we are repeating our call for “immediate abolishment of Article 301 of the Turkish Penal Code” which was submitted to the Presidency of the Parliament on 8 February 2007 which was signed by 20 thousands of individuals from different segments of the society, supported by more than 100 non-governmental organisations representing thousands of individuals. Abolishment of Article 301 will be an important step to heal the feeling social justice hurt by the murder of Hrant Dink.
We want to express our thoughts without bans, fears, and threats.
Amnesty International Turkey
Human Rights Association
Helsinki Citizens’ Assembly
Organization of Human Rights and Solidarity for Oppressed People