Article 301 Should Be Abolished
April 17, 2008
Article 301 should have been abolished a long time ago. The revisions proposed by the government will not change the fundamental flaws in the law. The government’s half-hearted revision is a real disappointment. The government has missed an important opportunity to reinvigorate the reform process and underscore its commitment to free speech.
Holly Cartner Europe and Central Asia director at Human Rights Watch

The government’s proposed revision to the infamous Article 301 of the Turkish Penal Code, which has been used to investigate and prosecute hundreds of people for peacefully expressing themselves, will not remove the article’s restrictions on free speech, Human Rights Watch said today. The government’s draft revision of the article is likely to be considered by the Turkish parliament in the coming days.

Since the article’s adoption in June 2005, writers, broadcasters, academics, politicians, artists, representatives of civil society, and public figures across the political spectrum have been, and continue to be investigated and prosecuted for comments “publicly denigrating Turkishness, the Republic, the Parliament ... the Government, judicial institutions, military or security organizations of the state.”

“Article 301 should have been abolished a long time ago. The revisions proposed by the government will not change the fundamental flaws in the law,” said Holly Cartner, Europe and Central Asia director of Human Rights Watch. “The government’s half-hearted revision is a real disappointment. The government has missed an important opportunity to reinvigorate the reform process and underscore its commitment to free speech.”

Prosecutors broadly interpret the vaguely worded article and use it against those who have raised human rights issues or debated matters of history and politics.

Civil society groups have long called for the repeal of Article 301 and similar provisions in the Penal Code and Anti-terror Law that allow prosecution of peaceful expression. Finally, under intense pressure from the European Union, the government submitted the proposed rewording of Article 301, which is expected to be adopted by the parliament next week.

However, the government’s proposal merely tinkers with the wording of the law, while maintaining its most problematic features. It substitutes “Turkishness” with “Turkish nation,” and the Republic with “the Republic of Turkey.” The government does propose a reduction of the maximum sentence from three to two years of imprisonment, which means that the sentence would be automatically suspended for first-time offenders. However, someone with a second conviction could face imprisonment. Under the proposed revision, the president would be responsible for granting permission for prosecutors to proceed with a prosecution. (In the past, the Minister of Justice was responsible for authorizing investigation under Article 159, 301’s predecessor in the previous Penal Code.) Additionally, the revised article removes the current requirement that the sentence be increased by one-third when the crime is committed abroad.

The government has repeatedly argued that laws similar to Article 301 exist in other European countries and that Turkey needs such a law. However, the government fails to note that in those countries such antiquated laws are rarely if ever used. The situation is entirely different in Turkey. According to figures supplied by Turkey’s Ministry of Justice, 1,533 individuals stood trial under Article 301 during 2006; the comparable figure for the first quarter of 2007 was 1,189. In any event, the European Convention on Human Rights allows for state interference in free speech only in strictly limited circumstances. Criminal prosecution of persons for exercising their freedom of speech in an entirely peaceful way is a violation of the European Convention.

The draft revision of Article 301 has been sent by the speaker of the Turkish Parliament to the Parliamentary Justice Commission. If the commission approves it, the draft will then be submitted to parliament and then on to the president. The main opposition parties (the Republican Peoples’ Party and the Nationalist Action Party) have stated their strong opposition to any alteration of Article 301, including even the cosmetic changes proposed by the government.

Article 301 achieved particular notoriety when journalist and human rights defender Hrant Dink was prosecuted three times, receiving a six-month suspended prison sentence in July 2006. The repeated prosecution and conviction under Article 301 appears to have made Dink a target of nationalist groups as an Armenian traitor who had been convicted for “publicly denigrating Turkishness.” Dink was assassinated in January 2007. Although few others have actually been convicted, many who were prosecuted – including novelist Orhan Pamuk in 2005 – found themselves harassed by ultra-nationalist groups at court hearings.

“The history of 301 is a tragic one. It is a cruel irony that the government has found it impossible to take a principled position and repeal this law,” Cartner said. “The real reason to repeal 301 is because Turkey’s citizens deserve the right to be able to speak, write, and publish freely and peacefully on all issues, without the threat of criminal investigation or other harassment under cover of this law.”

There are also many other laws in Turkey that are used to restrict free speech through criminal prosecutions and investigations including:

  • The Anti-terror Law and related articles in the Turkish Penal Code;
  • The law on crimes against Atatürk;
  • Many articles of the Penal Code including Article 318: alienating people from military service; Article 288: the attempt to influence a fair trial; and
  • Article 216: inciting enmity and hatred among the population on the basis of social class, race, religion, sect, language or regional differences.

One of the major problems in Turkey is that prosecutors and judges do not interpret these restrictions on freedom of speech narrowly, as required by the European Convention on Human Rights.

More reporting on: