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Article 10 of the European Convention for the Protection of Human Rights

Turkey’s primary legal obligation to protect freedom of expression is set out in the 1953 European Convention for the Protection of Fundamental Rights and Freedoms, which Turkey ratified in 1954 (Turkey is not a party to the International Covenant on Civil and Political Rights). In particular, Article 10 of the convention provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

While protecting the right to freedom of expression, Article 10 allows tailored restrictions in the defense of, among other things, national security and territorial integrity. Any assessment of whether a given restriction violates Article 10 requires an evaluation of “whether a fair balance has been struck between the individual’s fundamental right to freedom of expression and a democratic society’s legitimate right to protect itself.”20 In addition, given the supreme importance placed on free expression, “the need for any restrictions must be established convincingly.”21 It is not enough for a government to show that the purpose oflimitations imposed was “useful,” “reasonable,” or “desirable;” instead, it must show that the measures met a “pressing social need.”

In three recent cases, the European Court of Human Rights has issued judgments relating to free expression in Turkey. As stated above, the court was guided by the principle that a state may only restrict free expression under Article 10(2) where it can demonstrate a “pressing social need which would justify the finding that the interference complained of was ‘proportionate to the legitimate aim pursued.’”22 Applying these standards, the court ruled in two of the cases that Turkey had violated Article 10; in the third case, it found the restriction at issue to be permissible under Article 10(2).

In Incal v. Turkey, the court ruled that Turkey had violated Article 10 when it prosecuted members of the Izmir branch of a pro-Kurdish party in a national security court on terror charges for a leaflet it had prepared and submitted to authorities for approval to distribute.23 The court stated,

Subject to paragraph 2, it [Article 10] is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.... In order to demonstrate the existence of a “pressing social need” which would justify the finding that the interference complained of was “proportionate to the legitimate aim pursued,” the representative of the Government asserted...that “it was apparent from the wording of the leaflet... that they were intended to foment an insurrection by one ethnic group against the State authorities.” The court is prepared to take into account the background of the case submitted to it, particularly problems linked to the prevention of terrorism... . Here the court does not discern anything which would warrant the conclusion that Mr. Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically Izmir.... In conclusion, Mr. Incal’s conviction was disproportionate to the aim pursued, and therefore unnecessaryin a democratic society. There according has been a breach of Article 10 of the Convention.24

In The Socialist Party and Others v. Turkey, the court ruled that Turkey had violated Article 11, which protects freedom of association, when the Constitutional Court of Turkey ordered the closure of the Socialist Party (SP) in 1992.25 The court closely linked Article 10’s protection of free expression to the rights guaranteed in Article 11.26 It explained:

The Constitutional Court [of Turkey] noted that... Mr. Perinçek [the former head of the SP] had advocated the creation of minorities within Turkey and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State.

...[T]he court has previously held that one of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence.... Democracy thrives on freedom of expression.... Having analyzed Mr. Perinçek’s statements, the court finds nothing in them that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles.... Mr. Perinçek’s statements, though critical and full of demands, did not appear to call into question the need for compliance with democratic principles and rules....In conclusion, the dissolution of the SP was disproportionate to the aim pursued and consequently unnecessary in a democratic society.27

In Zana v. Turkey, however, the court ruled that Turkey had not violated the rights under Article 10 of Mr. Mehdi Zana, a leading Kurdish political figure and the former mayor of Diyarbak1r, the largest city in southeastern Turkey, when it convicted him under terror charges in a state security court for making the statement, “I support the PKK national liberation movement; on the other hand, I am not in favor of massacres. Anyone can make mistakes, and the PKK killed women and children by mistake.”28

The court noted that it was necessary to take into account the context in which the statement was made, explaining:

The statement cannot, however, be looked at in isolation. It had a special significance in the circumstances of the case, as the applicant must have realized. As the court noted earlier... the interview coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey, where there was extreme tension at the material time. In those circumstances the support given to the PKK—described as a “national liberation movement”—by the former mayor of Diyarbak1r, the most important city in south-east Turkey, in an interview published in a major national daily newspaper, had to be regarded as likely to exacerbate an already explosive situation in the region. The court accordingly considers that the penalty imposed on the applicant could reasonably be regarded as answering a “pressing social need” and that the reasons adduced by the national authorities are “relevant and sufficient.... There consequently has been no breach of Article 10.29

Domestic Law

A host of laws that punish free expression exist in Turkey. Many are so loosely worded or broadly applied that they violate the principle, as defined by the European Court of Human Rights and outlined in the previous section, thatrestrictions of free expression under Article 10.2 must strike “a fair balance...between the individual’s fundamental right to freedom of expression and a democratic society’s legitimate right to protect itself” as well as meet a “pressing social need.”

The 1982 constitution grants the right of free expression while at the same time qualifying the exercise of that right to an absurd degree. Its preamble states, for example,

No protection shall be given to thoughts or opinions that run counter to Turkish national interests, the fundamental principle of the existence of the indivisibility of the Turkish state and territory, the historical and moral values of Turkishness, or the nationalism, principles, reforms, and modernism of Atatürk, and that as required by the principle of secularism there shall be absolutely no interference of sacred religious feeling in the affairs of state and politics.

Articles 26, 27, and 28 of the constitution, which grant, respectively, freedom of expression, science and art, and the press, contain more paragraphs limiting these rights than granting them.30

Some of the laws most frequently used to limit free expression include Articles 155, 158, 159, and 312 of the Penal Code, Article 8 of the 1991 Anti-Terror Law, and Law No. 5816, the “Law concerning crimes committed against Atatürk.”

Article 159 of the Turkish Penal Code, one of the most widely employed laws, grants a “moral personality” (manevî sahsiyeti) both to corporate bodies, such as the judiciary and parliament, and to abstract concepts like “Turkishness.” Article 159 warns that,

Those who publicly insult or ridicule Turkishness, the Republic, the moral personality of Parliament, the Government, State Ministers, the military or security forces of the state, or the moral personality of the Judiciary will be punished with a penalty of no less than one year and no more than six years of maximum security imprisonment....31

In an official commentary on the law, a High Appeals Court (Yarg1tay) judge argues that,

The goal of this article [159] is to protect constitutional bodies (the Parliament, the lower house, the senate), the government, the ministers, public moral personalities (Turkishness, the Judiciary, the state military, security...forces....) from all types of attack; securing respect, together with the state’s existence, honor, and identity for the state’s highest bodies and the state’s basic moral personalities is directly relevant and important. ....Therefore, the crimes listed in Article 159 carry a special importance and uniqueness among the crimes committed against state forces.32

Other penal code articles restricting free expression that purport to protect state bodies and their moral personalities include Article 155, “alienating people from military service,” and Article 158, “insulting the president.”33

Another frequently used penal code article is 312.2, which prohibits “incit[ing] people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences.”34 Article 312.2 has largely been used against those writing about and debating the Kurdish question. In the absence of specific legislation prohibiting “Islamist propaganda,” however, it has recently begun to be used against Islamists.35

Article 8 of the 1991 Anti-Terror Law outlaws “propaganda against the state’s indivisibility.”36 Its scope was initially so wide—it took no account of intent or method—that even Turkey’s greatest living writer, Yasar Kemal, was prosecuted under it.37 Article 8 of the Anti-Terror Law, before it was amended in 1995, stated that,

Regardless of method or intent, written or oral propaganda along with meetings, demonstrations, and marches that have the goal of destroying the indivisible unity of the state with its territory and nation of the Republic of Turkey cannot be conducted.38

Eager to win approval of a Customs Union deal with the European Union and embarrassed by the attention paid to cases like Mr. Kemal’s, in October 1995 the government of then Prime Minister Tansu Çiller (DYP) pushed a bill through parliament amending Article 8 of the Anti-Terror Law. That amendment removed the phrase “regardless of method or intent.” Consequently, eighty-two individuals charged under Article 8 were released.39 Prosecutors, however, continued to open cases under the amended Article 8. The Y1lmaz government presented a bill to parliament in the spring of 1998 that would liberalize Article 8.40 It is currently pending.

Article 1.1 of Law No. 5816 penalizes, “anyone who publicly insults or curses the memory [of Atatürk]...with a sentence of between one and three years.” 41 Law No. 5816 has primarily been used against Islamists, though mainstream intellectuals have also been sentenced under it.

20 European Court of Human Rights, Sunday Times v. United Kingdom, Judgement of 26 April 1979, Series A, No. 30, Para. 59.

21 Ibid.

22 European Court of Human Rights, Case of Incal v. Turkey, (41/1997/825/1031), Judgement, Strasbourg, 9 June 1998, paragraph 57.

23 The leaflet was never distributed.

24 Incal v. Turkey, paragraphs 46, 57-59.

25 European Court of Human Rights, The Case of the Socialist Party and Others v. Turkey, (20/1997/804/1007), Judgement, Strasbourg, 25 May 1998.

26 In the case, the court ruled that, “notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in light of Article 10. The protection of opinions and freedom to express them is one of the objectives of the freedom of assembly and association as enshrined in Article 11....” See Case of the Socialist Party and Others v. Turkey, paragraph 41.

27 The Case of the Socialist Party and Others v. Turkey, paragraphs 43, 45, 46, 52, 54.

28 European Court of Human Rights, Case of Zana v.Turkey, (69/1996/688/880), Judgement, Strasbourg, 25 November 1997, paragraph 12. The statement appeared in an interview published in the August 30, 1987, edition of Cumhuriyet, then a leading national daily published in Istanbul.

The court did rule, however, that Turkey had violated Mr. Zana’s rights under Article 6, a fair trial.

29 The Case of Zana v. Turkey.

30 See Appendix, “Excerpts from Relevant Laws and Decrees.”

31 Türk Ceza Kanunu (Turkish Penal Code). This article was last amended in 1961.

32 Italics added. Dr. Abdullah Pulat Gözübüyük, Yarg1tay 8. Ceza Dairesi Baskan1, Türk Ceza Kanunu Aç1lamas1 (An Explanation of the Turkish Penal Code), (Ankara: Kazanc1 Yay1nevi, 1974), p. 620. Dr. Gözübüyük served as the head of the Eighth Criminal Office of the High Court of Appeals.

33 Article 155 states that,

Those who, except in circumstances indicated in the aforementioned articles, publish articles inciting people to break the law or harm the security of the country, or make publications or suggestions that make people unwilling to serve in the military or make speeches to that end in public meetings or gathering places, shall be imprisoned from between two months to two years and be punished with a heavy fine of between twenty-five and 200 lira.

Article 158 states that,

Whoever insults the President of the Republic face-to-face or through cursing shall face a heavy penalty of not more than three years.... Even if the name of the President of the Republic is not directly mentioned, allusion and hint shall be considered as an attack made directly against the President if there is presumptive evidence beyond a reasonable doubt that the attack was made against the President of Turkey. If the crime is committed in any published form, the punishment will increase from one third to one half.

Article 15 of the State Civil Service Law, which prevents civil servants from speaking to the press, also aims to protect the state from outside scrutiny.

34 Article 312 was amended by Law No. 2370 in October 1981, after the military coup of September 1980, to add paragraph two quoted above. Before the amendment, Article 312 made no mention of “racial, religious, confessional, or regional differences.” The Article was clearly amended in reaction to the ethnic reawakening among many Kurds that came to the fore in the 1970s. In addition, Article 312.2 carried a heavier penalty, one to three years of imprisonment, than did Article 312.1, “praising a crime,” which hitherto had mandated imprisonment of three months to one year. Imprisonment under Article 312.1 was also raised under Law No. 2370, to between six months and two years. See Gözübüyük, pp. 516-7, for the unamended version of Article 312.

35 Until its was abolished by the Anti-Terror Law in 1991, Article 163.5 prohibited conducting propaganda using religion or religious symbols.

36 The Anti-Terror Law was passed in April 1991, in part to replace Articles 141, 142, and 163 of the Penal Code. They, respectively, were used to prohibit Communist, Kurdish nationalist, and Islamist activities.

37 Mr. Kemal was prosecuted for an article titled “Journey of Lies” (Yalanlar Seferi) that appeared in translation in the German news weekly Der Spiegel; eventually he was acquitted of this charge.

38 Italics added. Unofficial translation. _smail Malkoç and Mahmut Güler, Ceza ve Yarg1lamada Temel Yasalar (Fundamental Laws in the Judiciary and Penal Code), (Ankara: Adil Yay1nevi, 1994), p. 498. In such laws one encounters the same set phrase: “the indivisible unity of the state with its territory and nation” (Devletin ülkesi ve milleti ile bölünmez bütünlü_ü).

39 The amended Article 8, which still stands, states that,

Written or oral propaganda, along with meetings, demonstrations, and marches, that have the goal of destroying the indivisible unity of the state with its territory and nation of the Republic of Turkey cannot be conducted.

The amendment to Article 8 also reduced sentences from between two to five years to one to three years.

40 Discussion with Dr. Hikmet Sami Türk, State Minister for Human Rights, Turkish Embassy, Washington, D.C., June 16, 1998. The draft law amending Article 8 apparently narrows the definition of the crime. Penal code Articles 7, 17, 159, and 312 are also included in the bill, which is presently on the agenda of the parliament’s general assembly.

41 The period of imprisonment is increased by one half if the act is carried out in the press.

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