The current government, apparently caught in the same cleft stick, has made no legislative change to expand freedom of expression since the E.U.'s December 1999 Helsinki Summit and courts have continued to hand down convictions to politicians and writers for "incitement" under Article 312 of the Turkish Penal Code. The most recent and notorious case was the widely publicized July 5 confirmation of a one-year sentence imposed on former Prime Minister Necmettin Erbakan for a speech he made in March 1994. The same week the Supreme Court confirmed a twelve month sentence imposed on Hasan Celal Guzel, former Education Minister and leader of the Rebirth Party, for a speech he made in Kayseri in 1998 in which he strongly criticized the head scarf ban (see below). He was only released in May after serving a sentence for which he was arrested just five days after the E.U. summit in December 1999. Necmettin Erbakan and Hasan Celal Guzel will both begin serving their sentences later this year.
Turkish courts show an eccentric understanding of what constitutes "incitement". The former mayor of Istanbul Recep Tayyip Erdogan was stripped of political rights and sentenced to a year's imprisonment for reading lines from a poem that not only contained no advocacy of violence or hatred, but was written by a celebrated republican poet and had actually been approved by the Ministry of Education for use in schools. In fact, in common with some other prosecutions under Article 312, the conviction of Recep Tayyip Erdogan appeared to be no more than straightforward political manipulation.
Currently serving a sentence under Article 312 in Ankara's Ulucanlar Prison is the former president of the Turkish Human Rights Association, Akin Birdal. He was imprisoned in June 1999, for a speech he made three years earlier calling for "peace and understanding." His release on health grounds in September 1999 was widely viewed as a maneuver to avoid official embarrassment during the Istanbul OSCE Summit in November and the E.U. Helsinki Summit in December. He returned to prison in March 2000.
More insidious than the substantial prison sentences are the bans on participation in politics or civil society that are triggered by convictions under Article 312. Under Article 4 of the Law on Associations, Akin Birdal was forced to resign not only his leadership of the Turkish Human Rights Association but also his membership. Under Article 81 of the Law on Political Parties, because of his conviction he may not stand for any political office nor join any political party during his lifetime, and the same bans apply to Necmettin Erbakan and Hasan Celal Guzel.
For politicians, a conviction under Article 312 effectively means the end of public life and is therefore a powerful curb on the discussion of ideas that are unwelcome to the state. As a consequence, politicians at odds with the official line on the role of ethnicity, religion or the military in politics must remain silent or be prepared to be removed from their political life.
Turkish politicians and officials have conducted a public but inconclusive debate on freedom of expression. Minister of Justice Hikmet Sami Turk has urged amendment of Article 312 so that only statements presenting a clear and present danger to the state or public order would be outlawed. Deputy Prime Minister Devlet Bahceli, on the other hand, has expressed the view that Article 312 is a useful and legitimate tool as it stands. The Chief State Prosecutor has made the extraordinary claim that Article 312 is fully consonant with the European Convention on Human Rights,25 despite a string of judgments to the contrary at the European Court of Human Rights (including Ozturk v Turkey, September 28, 1999 and Incal v Turkey, June 9, 1998). The views of the military appear to be intimidating the government and blocking progress. The Minister of Justice has explicitly acknowledged that the Chief of General Staff's opposition to amendment of Article 312 was a factor in his deliberations about the future of the article.26
The public argument about Article 312 ignores the raft of additional laws that would still inhibit freedom of expression even if 312 were eliminated. In the mid-1990s, most prisoners of opinion were held under Article 8 of the Anti-Terror Law. As this provision became discredited, prosecutors began to show a preference for Article 312. Now that the government has been criticized for recent imprisonments under Article 312, indictments under Article 8 are once again beginning to appear. A prosecution seeking imprisonment for up to three years opened at Ankara State Security Court in March 2000 against Ahmet Turan Demir, chair of the People's Democracy Party (HADEP), in connection with a speech he made at a Peace Festival in 1999. Prosecutions of non-violent expressions of opinion, and indeed cases of imprisonment, have also continued under Article 155 of the Turkish Penal Code, which outlaws criticism of military service, and Articles 158 and 159, which deal with insulting the president and the organs of state.
There are a host of other laws that restrict rights to demonstrate, to publish, and to broadcast. Confiscations of newspapers, books, and pamphlets are the daily business of press prosecutors, local governors and the Supreme Board of Radio and Television. This last body has been so punitive in closing radio and television stations on grounds of "inciting racial hatred" or "threatening the unity of the state" that even the Prime Minister was prompted to comment, "`I, too, have a lot of difficulty understanding the Board's criteria and standards.'"27 In fact, a comprehensive weeding out of offending articles of the Turkish Penal Code would be a laborious, politically difficult, and lengthy process. Perhaps there is an alternative solution that, given the necessary political will, could be pursued more swiftly. Turkey is a party to the European Convention on Human Rights, which binds the government to uphold the convention. Moreover, Article 90 of the Turkish constitution states that the terms of such conventions supervene domestic law. Pending amendment of the letter of the law, courts and the executive could be reminded that their judgments and administrative acts are constrained by the Convention and the jurisprudence of the European Court of Human Rights.
Accession Partnership Recommendations:
* The Justice Minister, in his capacity as president of the High Council of Judges and Prosecutors, should immediately issue a circular explaining to prosecutors and judges that sentences imposed for the expressionof non-violent opinion-no matter how unpalatable that opinion may be-are in contravention of Article 10 of the European Convention on Human Rights, which supersedes domestic law under the Turkish Constitution. Both the Report and the Calendar contain the vague statement that "The provisions of related legislation, including particularly the Turkish Penal Code, the Anti-Terrorism Law and the Political Parties Law that restrict freedom of thought and expression and allow flexible interpretation by the administration should be redrafted in line with the principles of the Republic that protect the integrity of the country." On prosecutions of journalists, both documents state that in reviewing the Press Law and the penal code, "The basic objective . . . should be to achieve changes which will prevent the conviction of journalists and writers for their writings and publications that do not encourage violence, crime or terrorism, do not involve open insults and do not intend to disturb or weaken the unitary character of the State, and in this context a general amnesty should be declared for journalists and writers who are currently in prison and have not committed offences of the above-named types." The introduction to the Calendar states: "In the steps which are to be taken, it has been considered necessary to give the state authority, as is the case in several E.U. nations, to limit by law the freedom of expression where a present and/or open danger/threat is posed." Both formulations are open to an interpretation that would violate the European Convention and would fail to achieve the immediate progress that a circular from the Minister of Justice, referring to the Convention and jurisprudence at the European Court of Human Rights, might give.
* The Law on the Organization and Broadcasts of Radio and Television Stations should be revised to reflect that it is constrained by Article 10 of the European Convention on Human Rights in its decision making. The Report states that amendments abolishing restrictive provisions should be made to Law 3984 on the Organization and Broadcasts of Radio and Television stations, and, "in this context, the independence of radio and television organizations should be strengthened and the composition and powers of the Radio and Television Supreme Board should be reviewed." The Calendar includes similar language, scheduling a draft for the end of 2002.
* The Justice Ministry and other ministries should further establish a training program to ensure that all relevant parties within the judicial system and the executive understand their obligations under Article 10 to uphold freedom of expression, and the government should also establish a follow-up program to ensure that those trained are implementing the principles in the training program. The European Union, in possible collaboration with the Council of Europe, could be instrumental in providing the funding and expertise for such training. The Report and the Calendar both propose seeking E.U. funding for the training of judges.
* The Turkish government should take any necessary measures to secure the release of all prisoners held for the expression of non-violent opinion, including the four Kurdish former deputies Hatip Dicle, Orhan Dogan, Selim Sadak and Leyla Zana, restore political rights to all former prisoners of opinion, and put a halt to all legal proceedings currently in process against Turkish citizens for the expression of their non-violent opinions. These measures are not specified in the Report or the Calendar, though both propose an amnesty for imprisoned journalists and writers who "have not advocated violence, offered open insult, or attempted to divide the unitary state." The Calendar suggests that a draft law will be ready by 2002.
A new draft penal code became public in 1997. It is currently being revised by the government, but the pending revised draft is not yet available. The 1997 draft contained elements both positive and negative from the point of view of freedom of expression. Article 289, which deals with incitement to racial or religious hatred, virtually restates the terms of the existing troublesome Article 312 while substantially increasing the penalty. The commentary to the article, which provides that statements of this kind can only be considered an offence if they threaten public order, is an important safeguard, but this must be strengthened by comprehensive training of judges and prosecutors on the application of Article 10 of the European Convention and other instruments dealing with freedom of expression.
Article 425 of the draft penal code would also
provide for up to three years' imprisonment for insulting the president.
Article 426 would provide for imprisonment for insulting ministers or members
of the armed forces, as wellas government institutions, such as the Turkish
parliament, the Turkish state, the Council of Ministers, or the armed forces.
Articles 425 and 471 similarly would criminalize insults to the Turkish
and foreign flags. The European Court of Human Rights expressed the following
view about prosecutions on such grounds:
The limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.28
Accession Partnership Recommendation:
* The Turkish government should work closely with the Council of Europe to ensure that the new Criminal Code and Criminal Procedure Code are fully compatible with the European Convention on Human Rights and jurisprudence of the European Court of Human Rights. The Report states that "National legislation should be brought into line with international conventions ratified under Article 90 of the Constitution and legislative measures should be adopted concerning the binding nature of judgments passed as a result of exercising the individual right of application which was granted under the European Convention on Human Rights." The Calendar contains similar language.
Imprisonment of conscientious objectors
Article 377 of the draft penal code, which would impose imprisonment for up to two years for "alienating the people from the institution of military service" is a restatement of Article 155 of the existing penal code, which has been the basis for several prosecutions and the repeated imprisonment of one conscientious objector, Osman Murat Ulke.29 These articles are closely linked with the right of conscientious objection. Turkey has compulsory military service for all adult males and makes no provision for conscientious objection.
Accession Partnership Recommendation:
* Article 155
of the Turkish Penal Code should be abolished and Article 377 of the draft
penal code should be revised in line with international standards. An option
for civilian service, which is not of punitive length, should be established
for conscientious objectors. This measure
is not specified in the Report or the Calendar.
25 Milliyet, (Nationhood) March 22, 2000.26 "Justice Minister Turk: `Abolishment of Article 312 is out of the question.'" Anatolian News Agency, March 16, 2000.27 Turkish Daily News, February 20, 2000.
28 European Court of Human Rights, Castells v. Spain, No. 11798/85, April 23, 1992.
29 See Amnesty International Report - Turkey : Osman Murat Ülke - Conscientious Objector Imprisoned for Life, May 1998, AI Index: EUR 44/22/98.