Human Rights Watch was surprised and disappointed to learn that the state prosecutor has opened the proposed case against Orhan Pamuk for “insulting Turkishness” under article 301 of the criminal code. We are further troubled by reports that the prosecutor has ordered police to bring Pamuk to Sisli Primary Court No. 2 in Istanbul for the first trial hearing on December 16. If convicted, Pamuk could be imprisoned for up to four years.
Orhan Pamuk, a novelist of international standing, translated into thirty-five languages, was indicted for saying that “thirty-thousand Kurds and one million Armenians were killed in these lands” in the Swiss magazine Das Bild (Picture) of February 6, 2005. Turkey has a long record of prosecuting its great writers for their non-violent opinions—from Namık Kemal in 1873, through Nazim Hikmet, Sabahattin Ali, Necip Fazıl Kısakürek and Yasar Kemal. However, by signing and ratifying the European Human Rights Convention and the International Covenant on Civil and Political Rights, Turkey has committed itself to break with that tradition. The Sisli prosecutor’s decision to open this action defies the decision of the Turkish Grand National Assembly that international human rights law should protect Turkish citizens from prosecution or other sanctions arising from the non-violent expression of their views.
Pamuk’s trial is not an isolated case. Numerous writers, politicians and human rights activists have been brought before the courts under article 301 and similar criminal provisions related to insult. Magazine editor Hrant Dink and vice-president of the human rights organization Mazlum-Der Sehmus Ülek are also on trial for “insulting Turkishness” under article 301. Publisher Ragıp Zarakolu is on trial for “insulting Atatürk” under Law 5816. Newspaper editor Ersen Korkmaz is being tried for “insulting the government” under article 301. Journalist Rahmi Yildirim is on trial for “insulting the armed forces” under article 301 and on September 13, journalist Emin Karaca was sentenced to five months’ imprisonment (commuted to a fine and suspended) for the same offence. Each of these individuals was charged for nothing more than the peaceful expression of his opinions.
Turkish courts are increasingly likely to acquit individuals charged with criminal insult crimes, but they do not, as they should, throw out all such cases at the first hearing. Every year since 1999, the European Commission’s Regular Report on Turkey’s accession to the European Union has mentioned training of judges and prosecutors. The 2004 report noted that the training of judges and prosecutors had “intensified.” The recent slew of cases suggests either that some prosecutors and judges assigned to freedom of expression cases have not received adequate training, or that they are deliberately ignoring international law.
The European Union (EU) enlargement commissioner Olli Rehn, who expressed “serious concern” about the Pamuk case, noted that the slating of the case for December 16, anniversary of the EU’s decision to open membership negotiations with Turkey, appeared not to be a coincidence, but a “provocation.” If that is true, it is deeply troubling. Prosecutors and judges may well disagree with the government’s project of European Union membership—but they are not entitled to express their disagreement by vexatious prosecutions of individual citizens.
Even if the case against Pamuk ends in acquittal, it will have been a form of state harassment of the author, as well as a waste of time for both the author and the overworked Turkish courts. If Pamuk is convicted and imprisoned, it will be a violation of international human rights norms and will be condemned around the globe. What is more, the decision will eventually come before the European Court of Human Rights. The jurisprudence of the court (notably Castells v Spain, Handyside v United Kingdom) leaves no doubt that the court will find that Turkey has once again violated article 10 of the ECHR. Whatever the cost ultimately to Turkey in financial terms, the cost in terms of loss of public respect will be greater.
Writers, journalists, politicians, the judiciary, and the outside world, will be closely watching the Pamuk case on December 16. The outcome will reveal whether the Turkish government is willing to uphold its international human rights obligations related to freedom of expression. The government cannot shirk responsibility by referring to the independence of the courts. The current government has ignored all calls for the repeal of criminal code articles infringing free speech (article 299 - insulting the president; article 300 - insulting the flag; article 301- insulting Turkishness and the organs of state) and instead kept these article when the new criminal code was adopted in June 2005. What is more, the Justice Ministry has failed to ensure that the annual performance review of judges and prosecutors includes an assessment of their knowledge of and compliance with international law.
We urge your ministry to ensure that all prosecutors and judges understand that international law contained in human rights instruments is not foreign law, but Turkish domestic law, incorporated under article 90 of the constitution, and that they are expected to carry out their duties consistent with such international human rights instruments. We call for the immediate abolition of article 301 and similar provisions concerning criminal insult and hope that the prosecution of Orhan Pamuk, as well as other similar prosecutions for their peaceful expression, will be dropped immediately.
Europe and Central Asia division