The Europe and Central Asia Division of Human Rights Watch called on Assistant Secretary of State John Shattuck to raise the issue of legal reform during his visit this week to Turkey.

A copy of the letter is attached.

Friday, February 13, 1998

Assistant Secretary of State John Shattuck
Bureau of Democracy, Human Rights, and Labor
Department of State
Washington, DC

Dear Secretary Shattuck:

We write to you today concerning your upcoming visit to Turkey. Human Rights Watch welcomes your trip as an opportunity for the administration to expand its discussion with the government of Turkey concerning human rights and democratization. We are encouraged by your continued efforts to solicit views from the community of non-governmental organizations both in United States and Turkey and hope this letter advances your dialogue with the government of Turkey.

The government of Prime Minister Mesut Ylmaz has spoken of 1998 as "the year of law." To that end, the Justice Ministry has prepared a draft law of 522 provisions amending the Turkish Penal Code and recently submitted it to the Council of Ministers. Adopted in 1926, the Turkish Penal Code, though amended many times, is based on the Italian Criminal Code of 1889. Human Rights Watch is not currently in a position to comment on the draft law amending the Penal Code as a copy has not yet been made public. We do note that according to press reports the draft contains some positive developments, including abolition of the death penalty, increased punishments for officials convicted of using torture, and some easing of restrictions on free expression.

We urge you, however, to impress upon the government of Turkey the need to conduct much farther-reaching legal reform to target an array of laws that curtail free speech beyond the limits acceptable under international law. They include certain articles and provisions of the following laws: the Constitution; the Turkish Penal Code; the Press Law; the Political Parties Law; the Election Law; the Police Duty and Responsibility Law; the Anti-Terror Law; the Law concerning Crimes committed against Atatürk; the Provincial Administration Law; the law concerning founding and broadcasts of Television and Radio; and the Foreign Language Education and Teaching Law. The list is not exhaustive, but merely represents a compilation of the most egregious and actively used tools to repress free expression.

Human Rights Watch believes that increased freedom of thought represents a crucial area where Turkey must make progress. We believe that open debate unconstrained by fear of persecution or the need for self-censorship is a fundamental prerequisite for solving other problems, whether police abuse and torture or the conflict in southeastern Turkey. We realize the challenges Mr. Ylmaz's minority coalition government faces. We hope he is able to carry through with his efforts to improve human rights. Every state has a duty to maintain public order, and Turkey faces a legitimate security threat. But that responsibility must be seriously weighed against the right to express opinions and to peacefully argue for change within the democratic system. Unfortunately, the state has largely failed to achieve that delicate balance.

Presently, the state of free expression in Turkey is a chaotic mix of freedom and repression. Earlier positive steps, such as legalizing private radio and television stations in 1993 or abolishing in 1991 a law forbidding the use of Kurdish (Law No. 2932) were either not followed up by further reform or were offset by other restrictions, some newly-imposed. Consequently, an arena of freedom where most issues can be discussed exists along side a danger zone where many who criticize accepted state policy about the role of Islam in politics and society, Turkey's ethnic Kurdish minority, the nature of the state, or the proper role of the military, face official sanction. Sometimes these two spheres collide, creating bizarre and contradictory situations. In 1997, for example, three journalists--two from the now defunct Kurdish nationalist newspaper Demokrasi and a reporter for the mainstream private television channel ATV--were arrested for interviewing two former PKK members. The two men, however, had earlier given statements without incident to other newspapers and to two popular television news programs. They even testified before a commission of the parliament of Turkey. Government repression of such critical views includes banning books and publications, pursuing criminal prosecution, closing newspapers and journals, denying journalists access to the conflict zone in southeastern Turkey and Northern Iraq, torturing and killing journalists from the radical and opposition press, and banning such political parties as the Islamist Welfare Party in 1997 and the Kurdish nationalist Democracy Party in 1994.

Changes in the legal system that do not address the most egregious manifestations of what some scholars refer to as the "sacred state" (kutsal devlet) would amount to little more than a palliative and are unlikely to increase free expression. This concept is based on a strong, centralized state apparatus that punishes difference and criticism for the sake of creating a homogenized and idealized citizen and society. The mentality of the "sacred state" is sown throughout Turkey's present constitution, written in the wake of the 1980 coup, and found in much of its legal framework, including the penal code. Many of these laws are either vague or, conversely, impose absolute prohibitions. Corporate bodies such as the judiciary or the army are given a "moral personality" that under the law can be "insulted." One statute, for example, criminalizes the creation of "ethnic minorities." Some scholars may indeed argue that such a development model was appropriate seventy-five years ago, when the Republic of Turkey was founded, and certainly was not unique to Turkey. Such an entity, however, has little place in a world that enshrines individuals' rights in law and seeks to make government transparent to its citizens.

Many in Turkish society--the vibrant private sector business community, a small but growing civil society, and numerous journalists, academics, and intellectuals--have outgrown the outdated and sclerotic legal framework of the "sacred state." With each day they are pushing state-imposed limits on free expression and questioning restrictive practices. For example, a state security court prosecutor who publicly questioned the independence of the judiciary was himself charged and later acquitted. Mr. Yaar Kemal, Turkey's most famous living writer, was charged under the 1991 Anti-Terror Law for an article critical of the state's policy on the Kurdish minority that appeared in the German weekly Der Spiegel. Mr. Eber Yamurdereli, a respected lawyer and human rights activist, was convicted on free expression charges, briefly imprisoned, then released by a local prosecutor as anger in society mounted. It now appears he may be reimprisoned. In an effort to challenge restrictive press laws, a group of leading intellectuals, writers, and actors released a pamphlet, "Freedom of Thought-2!" (Düünceye Özgrlk-2!), in order to precipitate a court case against

themselves. Over one thousand intellectuals conducted a similar act of civil disobedience two years ago. TSAD (Turkish Industrialists' and Businessmen's Association), a business group of over 400 of Turkey's largest companies, has called for an overhaul of the legal system to create a "transparent, individual-centered" state. Recent films, such as Reis Çelik's Let there be Light (Iklar Snmesin), a frank account of the conflict in southeastern Turkey, or the depiction of police torture in Mustafa Altoklar's Heavy Novel (Ar Roman), have also expanded boundaries.

We attach in the appendix to this letter excerpts from laws and decrees enumerated earlier that Human Rights Watch believes must be amended or abolished to remove restrictions on free expression that violate international standards. We hope you will share this list with all of your interlocutors during your trip. We also believe that Turkish society in its entirety must actively participate in the debate on reforming the Penal Code. We were thus heartened when the State Minister for Human Rights, Mr. Hikmet Sami Türk, called for academic, professional, and scientific communities to conduct a public debate on reforming the Penal Code. We hope you will be able to advance this discussion and wish you success in your endeavors in Turkey.

Sincerely,

-s-

Holly Cartner
Executive Director
European and Central Asian Division of Human Rights Watch

Enclosed: List of Turkish Laws Violating Free Expression

cc:
Ambassador Nuzhet Kandemir, Embassy, Republic of Turkey, Washington, D.C.
Ambassador Mark Parris, Embassy, United States of America, Ankara, Turkey
Mr. Marc Grossman, Assistant Secretary of State for European and Canadian Affairs, State Department, Washington, D.C