Article 301 of Turkish Penal Code

A CONTROVERSIAL ARTICLE OF TURKISH PENAL CODE


1 -Article 301 of Turkish Penal Code

A - Introduction of Issue

Man in developed countries have some inalienable basic rights that have a very important role in their lives. Freedom of speech is basic one. In fact, because freedom of speech leads societies to improve, it is seen as an opportunity for the public in developed countries. In Turkey, there is a highly controversial regulation named article 301 that is related to freedom of speech. It is article 301 of the Turkish Penal Code, law no 5237. Article 301 regulated by the penal code in 1936 and has been changed seven times up to now. It was regulated as Article 159 of the previous penal code. This article consists of four clauses, and was introduced with the legislative reforms of 1 June 2005 and replaced Article 159 of the old penal code. Because some writers and journalists have been prosecuted under this law so far, it is being widely debated in Turkey and throughout Europe.

B - Explanations about article 301

Article 301 of Turkish Penal Code is quoted below.

TO DENIGRATE TURKISHNESS, REPUBLIC, AND INSTITUTIONS AND ORGANS OF THE STATE ARTICLE 301:

“1 - A person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years.

2 - A person who publicly denigrates Government of the Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be punishable by imprisonment of between six months and two years.

3 - In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.

4 - Expression of thought intended to criticize shall not constitute crime.”


First of all, it is necessary to explain which kind of events and situations are required for this article to be applied. Sample events are shown below:


A person who says “All the Turkish people are thieves and half of them are stupid.”

A person who says “The Turkish government is exploiting some weak ethnic groups, these groups are treated inhumanely.”

A person who says “The Turkish army is exploiting the people who lives eastern Turkey. This army is treating them as if they are all terrorists.”

A person who says “Turkish judiciary is untrustworthy, it is not independent.”

These four instances shown above are required for this article to be applied. In other words, those who act as shown above or act in a similar way, can be prosecuted. However, it is necessary to do these acts publicly to be punished under this law. For example, if the acts included in article 301, are carried out in front of a huge crowd, during a television or radio broadcast, it will constitute a crime. Otherwise it can not be evaluated as a crime. To illustrate, if the acts are done among two or five persons it is not possible to say that it is a crime.


2 - Criticism On the Regulation

It is claimed that when the 4th. paragraph of this controversial article is considered, it is understood that this article does not constitute any problem in freedom of speech. In fact, freedom of speech consists of the expression of thought that is allowed by this clause of article 301. However, European Countries do not think in this way. Turkey-EU Joint Parliamentary Commission Co-Chairman Joost Lagendijk said that “this murder (murder of Hrant Dink) is an indicator that the Article 301 should be abolished” German Alliance 90/The Greens party co-chairman Claudia Roth said that “Article 301 of the Turkish Penal Code should be abolished as soon as possible, saying this article strengthens nationalistic movements. 29 non-governmental organisations have released a joint declaration demanding a total abolishment of Article 301 of the Turkish Penal Code and other articles violating freedom of expression. These organizations suggest that, the criminalisation of insult and defamation discourages free debates and acts that are highly significant in democratic government.

“This article, which led to unacceptable consequences regarding freedom of expression and freedom of the press should be removed to reestablish social peace and give way to full implementation of the freedom of expression in the country” non-governmental organization said. According to this organization, the ambiguity of the article constitutes a threat to citizens' rights to freedom of expression.


3 - Prosecutions Under The Article

At this point, it is useful to mention some prosecutions under this law:

1 - In February 2005, Novelist Orhan Pamuk said “30000 Kurds and one million Ottoman Armenians were killed in Turkey” during an interview, done by a weekly magazine paper. After this interview, he was prosecuted. However, the court came to the conclusion that the permission of the ministry of justice is required for hearing of the case. On the other hand, because the ministry of justice did not agree with the court and stated that the permission was not necessary for the court to try. Then the case was dropped by the court. (Radikal, 23 January 2006, Radikal-çevrimiçi)

2 - Birol Duru is a journalist. On 17 November 2005 he was charged with “denigrating the security forces” under Article 301 because he published on the Dicle news agency a press release from the Human Rights Association (IHD) Bingol branch which stated that the security forces were burning forests in Bingol and Tunceli. Birol Duru is due to be sentenced on 8 December 2005.

3 - Novelist Elif Şafak said in her novel the name of which is “Father and Bastard” that “I am the grandchild of genocide survivors who lost all their relatives to the hands of the Turkish butchers in 1915, but I myself have been brainwashed to deny the genocide because I was raised by some Turk named Mustapha. (Magazine named “Mekanım”) Due to the these and similar statements in mentioned novel, Elif Şafak was tried under Article 301 for “insulting Turkishness”. She was acquitted at the first hearing, as there were “no elements of crime.” ( Turkish Daily News, January, 25, 2007.

4 - Murat Belge, Hasan Cemal, Erol Katırcıoğlu and Haluk Şahin were sued with the argument that they have “insulted the judiciary institutions of the state” in their articles about the court decision that halted the Armenian Conference. The journalists were acquitted (Turkish Daily News, January, 25, 2007)


4 - Approach Of The Turkish Politicians On The Article

Turkish politicians have different ideas about this controversial issue. For instance, the Republican People’s Party Leader Deniz Baykal has said “The prime minister is looking for an accomplice to the shameful act of making it free to insult the Turkish identity in Turkey. He almost expects us to apologize for being Turkish. We will not apologize” He is also against revising this article. Furthermore, it is known that The Republican People's Party, The Motherland Party, The True Path Party and The Nationalist Movement Party are against any revisions (Turkish Daily News, April, 19, 2007 Turkish Daily News - Jul 07, 2008. However, the Turkish Justice minister thinks that it is too early to consider changing it. İt should be observe to find out how the law will be interpreted by the judiciary. The Turkish Prime Minister thinks that this article can be discussed to amend. (Euractive.com EurActiv.com - EU steps up pressure for Turkish penal-code reform) Furthermore, at present, there is no political party which thinks that this article should be abolished entirely.


5 - Proposals On The Article

There are some proposals to resolve this issue. One of them is that entered by the council of the press. The head of the Council of the Press, Oktay Ekşi, and a member of this council Turgut Kazan presented this proposal to Cemil Çiçek, Minister of Justice and Deniz Baykal, Republican People’s Party leader. According to this proposal, the Turkish Nation is used in this article instead of Turkishness. Furthermore, to consider an act as a crime, the act is required to be destructive to the dignity of the Turkish institutions or the Turkish Nation
and, it must be so serious that public peace and public security must be in a danger of being violated. Moreover for an act mentioned above to be considered as a crime, it is necessary for it to be done publicly. Finally, there is a limitation that an act that constitutes a crime under article 301, can not be prosecuted unless permission is got from the ministry of justice.

Another proposal has been presented by Sami Selçuk, the old chairman of the Supreme Court. His proposal is very similar to the proposal of the council of the press. However, he thinks that the permission, mentioned in the proposal of the said council, should be given by President instead of the ministry of justice.


6 - Comparison With Other Countries

Having looked at the cases and the proposals, it is necessary to analyze European law on this issue. “A person who publicly denigrates the Republic, Parliament, or both of them, or
the Government or the Constitutional Court or Judicial authority, shall be punishable by imprisonment of between six months and three years.” Says articles 290 and 291 of the Italian Penal Code. When these two codes are compared, it can be seen that the difference between the Turkish and Italian Criminal Code is quite minor.

In second European Country, Poland, the situation is slightly different. “A person who publicly denigrates the Republic of Poland, public of Poland, shall be punishable by imprisonment of between 1 year and three years.” Says, article 133 of the Polish Penal Code.

In another European Country, the Spanish article 543 of Spain Penal Code says “A person who publicly denigrates Spain, the self governing territory of Spain, or its symbol or its emblem in a verbal or written way, shall be punishable by imprisonment of a maximal of two months.”

Article 90 of the German Penal Code says “A person who publicly denigrates the Federal Republic of Germany, one of the counties of Germany, or swears to the Constitutional order or denigrates its flag, its order, national anthem, emblem shall be punishable by imprisonment of between 1 year and three years.”

Finally, Article 110/e of the Denmark Penal Code says “Anyone who publicly denigrates all the European Countries or European Nations or the Parliament of Europe shall be punishable by imprisonment of maximal 2 years.”

Under these regulations, in Germany, there were 72 cases in 2004, in Italy, there were 21 cases in 2000, 31 cases in 2002, 5 cases in 2003, 28 cases in 2004, in Holland, there were 134 cases in 2004, 146 cases in 2005 and 139 cases in 2006. All the cases mentioned above resulted in conviction.


7 - Solution

First of all, the policy of punishment and culture is closely related to each other. In other words, for an act to be evaluated as a crime, it is necessary for this act to be unacceptable in the culture. Similarly, if an act is acceptable in any culture, it can be abolished even if it constitutes a crime in law. Here, the cultural differences between Turkey and European Countries must be evaluated. There is no doubt that, being developed societies, the European culture is much more tolerant than Turkish Culture.

For example, the marriage between gays is acceptable in many European Countries, while it is seen as unacceptable in Turkey. It is true that, especially in eastern Turkey, up to now, many young girls have been killed by their relatives just because they have married to boys whom they have not been given permission to marry by the victims’ relatives.
Furthermore, swearing at someone for example during a quarrel does not result in any serious problem in European Countries, while it can create serious danger in Turkey. Abusive language is intolerable in our country.

The acts that are evaluated as a crime under article 301 are abusive language that can include swearing. As it can be seen easily, there is a strong belief in European Countries that this is article expected to be abolished completely. However, can it be said that they are right? Despite tolerance of European Countries, they have similar regulations to article 301.
Because there are many regulations like article 301 of Turkish Penal Code and there are many prosecutions under this article in European Countries, the idea of abolishing this article is neither right nor realistic for Turkey whose culture is less tolerant than the culture found in European Countries.

As mentioned above, there are some proposals to change this article. The most important thing for the issue of how this article should be changed is that it has to be considered that citizen’s fundamental rights are much more valuable than protecting the state from its citizens. Because freedom of speech is a basic right in democracies, it has to be provided for people to use it as freely as possible. The best way for any country to develop is to release the citizens to think and express themselves. The more tolerance given to people to speak freely, the more progress the country will have. Although the proposals mentioned above can contribute to the freedom of speech, it is clear that it will not resolve the issue. All the concepts included in the proposals are ambiguous and closely related to judges’ and public prosecutors’ interpretation. That is, while one judge do not evaluate for a case as a crime, another one can think it is a crime.

In some proposals, permission of ministry of justice is required for an act to be prosecuted. This thought is based on an idea of preventing a public prosecutor or a judge from being wrong. Separation of powers between judicial power and executive function is vital for democracies.

It is clear that the aim of freedom of speech is allowing progress in society and making the country more desirable to live in. This right is protected because all beliefs and ideas are essential to reach the truth. Because it is needed, it must be protected even if some parts of the society or some institutions would be criticised or insulted in a verbal way. However, the act should have a reason or the aim of criticism. Therefore, the aim of an act should be evaluated to determine whether it is a crime. In fact, if an act do not aim any criticism and if it only aims to swear at and to insult some institutions of a state or the Turkish nation without reason, there is no need to protect it. To illustrate, if a person publicly says “All Turks are stupid and barbarian” without any criticism and without any reason, he should be punished. On the other hand, if some cases are mentioned and are criticised with words that can constitute a crime under article 301, there is a benefit to protect this action. For example, if someone shows some evidence in an interview and says that “There was genocide in Turkey in 1915, therefore some Turks were killers” this behaviour should be consider as an act that should not constitute any crime. Furthermore, the differences between the responsibility for a crime and the responsibility for compensation should be considered. Any act may not be evaluate as a crime, however, this does not mean that the person whose act causes someone or a certain group of people emotional trauma will be exempt from compensation. If an act causes emotional distress, the person who cares out the action will be responsible to make up even if this act does not constitute a crime. Therefore, people who use their freedom of speech, should be respectful to the others, when they criticize or represent some cases.

Having looked at all the aspects of the issue, the final proposal is as quoted below.

TO DENIGRATE TURKISHNESS, REPUBLIC, AND INSTITUTIONS AND ORGANS OF THE STATE ARTICLE 301 :

1- A person who publicly denigrates Turkish Nation, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between 6 months and one year or punitive fine.

2 - A person who publicly denigrates the Government of the Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be punishable by imprisonment of between 4 months and 6 months or punitive fine.

3 - In cases where denigration of the Turkish nation [see remark above] is committed by a Turkish citizen or by a person who has diverse citizenship including the Turkish one in another country the punishment may be increased by one third.

4 - Expression of thought intended to criticize or expressed in order to discuss the issues shall not constitute a crime even if it includes the acts shown in the subsections above.

IMPORTANT NOTE: Above mentioned article has been amended by the Law No: 5759
The new version of Article 301:

Title of the article amended as: “Insulting the Turkish People, Republic of Turkey and Governmental Institutions and Bodies”
(1) The person who publicly insults Turkish People, Republic of Turkey or Turkish Grand National Assembly, Government of Republic of Turkey and the judicial bodies of state is inflicted imprisonment for between six months and two years.
(2) The person who publicly insults military organizations or the police organizations of state is punished according to the first sub-clause.
(3) The declarations which aim to criticize are not evaluated as crime.
(4) Examination related to this article depends on the permission of Minister of Justice.