By Orhan Kemal Cengiz
This week I have been in Strasbourg, France attending meetings at the Council of Europe on some specific issues related to democracy and human rights in Turkey. On Monday I attended a lecture on the situation of religious minorities in Turkey, held by Strasbourg University. I tried to explain to the audience the importance for Turkey of confronting the past, in order to become a better democracy.
Having talked about confrontation, it was interesting to read the European Court of Human Rights’ (ECtHR) evaluation of Article 301 of Turkey’s Criminal Code, on denigrating Turkishness, in the judgment it delivered this Tuesday. I am talking about the case of Taner Akçam v. Turkey, which resulted in a finding that Mr. Akçam’s freedom of expression was violated.
The story of Article 301 is a long one. Hrant Dink was killed after being tried under this article by ultranationalists. The current government has amended the article by reducing the possible sentence and adding an additional clause requiring the prior permission of the Ministry of Justice to prosecute under this article.
The ECtHR’s Akçam decision demonstrates that these amendments are not sufficient. After this judgment I think Turkey needs to abolish this article altogether. Interestingly, Taner Akçam has not been punished under this article, but he has been prosecuted a couple of times for his articles about the Armenian taboo. Normally, the ECHR would have rejected his application, saying that he had not been sentenced under the law in question and therefore does not have victim status. However, the court took his allegation of having been victimized under this article seriously for various reasons. The ECHR’s findings about Mr. Akçam’s “victim status” were as follows: “The tangible fear of prosecution not only cast a shadow over the applicant’s professional activities, but also caused him considerable stress and anxiety, and seriously constrained his activities. … It was widely believed that Hrant Dink had been targeted by extremists because of the stigma attached to his criminal conviction for ‘insulting Turkishness.’… Even though the public prosecutor in charge of the investigation issued a decision of non-prosecution, holding that the applicant’s views were protected under Article 10, this did not necessarily mean that the applicant would be safe from further investigations of that kind in the future… the court considers that while the applicant was not prosecuted and convicted of the offence under Article 301, the criminal complaints filed against him by extremists for his views on the Armenian issue had turned into a harassment campaign and obliged him to answer charges under that provision.”
The ECtHR dismissed the government’s claim that the prerequisite of the permission of Ministry of Justice prevents misapplication of the article, saying: “In any event, the court considers that even though the Ministry of Justice carries out a prior control in criminal investigations under Article 301, and the provision has not been applied in this particular type of case for a considerable time, it may be applied again in such cases at any time in the future, if for example there is a change of political will by the current Government or change of policy by a newly formed Government.”
The ECtHR also analyzed how this article is interpreted by the Court of Cassation:
“Moreover, the court observes that the established case-law of the Court of Cassation must also be taken into consideration… the interpretation of Article 301, particularly the concepts of ‘Turkishness’ or the ‘Turkish nation’… the Court of Cassation sanctioned any opinion criticizing the official thesis on the Armenian issue.”
The following paragraph in which the ECtHR evaluates the relation between 301 and Armenian question is also important: “In view of the foregoing, the court concludes that the criminal investigation commenced against the applicant and the standpoint of the Turkish criminal courts on the Armenian issue in their application of Article 301 of the Criminal Code, as well as the public campaign against the applicant in respect of the investigation, confirm that there exists a considerable risk of prosecution faced by persons who express ‘unfavorable’ opinions on this matter, and indicates that the threat hanging over the applicant is real. In these circumstances, the court considers that there has been an interference with the exercise of the applicant’s right to freedom of expression under Article 10 of the [European] Convention [on Human Rights].”
I really hope that this judgment will be read carefully by the Turkish authorities and that we will be able to get rid of Article 301 as soon as possible.