Article 301 Changes, But Criticism Still Is Considered Insult
The government has submitted a proposal to Parliament to amend the infamous Article 301 of the Turkish Penal Code, which has been used to to prosecute intellectuals, journalists and activists for “insulting Turkishness.” (See my March 21 blog entry on Ms. Erin Keskin’s recent conviction under Article 301.)
Nobel Prize-winning novelist Orhan Pamuk was tried under Article 301, and ethnic Armenian journalist Hrant Dink was tried and convicted under the same law, then killed in 2007 by a teenage hitman for “insulting Turks”. The government’s unwillingness to change Article 301 despite more than two years of mounting EU and domestic pressure has become a major obstacle for progress in Turkey’s EU accession process and led to questions over the AK Party’s commitment to reform.
Several changes have been proposed. These are now before parliament, but have been criticized as not conforming to legal norms and as just whitewashing the problem. (click for article) The text of the law is expected to be changed to criminalizing “insulting the Turkish nation” instead of the vague “insulting Turkishness.” This, it is argued, would exclude insulting Turks outside of national boundaries, like Turkmen or Uzbeks. Since the application of the law in such circumstances is unlikely, this seems a spurious argument. The real problem is the application of the law within Turkey to punish people for speaking or writing critically in the most general terms about 1) the state, government and military; and 2). anything deemed to affect “national honor” (a category as broad as the horizon for the nationalists). The way Article 301 has been applied reflects the widespread notion that criticism is the same as insult. (My posts on education give some insight into the possible origin of this.)
Another change to Article 301 now before parliament would require permission from the president for a case to be prosecuted under Article 301. This has been criticized for a number of reasons. The president, it is argued, is not a court. Also, the president would not step in until after the investigation, that is after the accused has been investigated, arrested and detained. In past cases, once people have been accused under Article 301, they have been found guilty in popular opinion and often harrassed and threatened by militant nationalists, even if their case is later dropped or they are found innocent (or, in the new version, if the president decides their case should not go forward.) As Professor Adem Sözüer from Istanbul University’s Department of Law said, the most appropriate method is for prosecutors to get it right to begin with. But as we have seen over years of indictments for the most trivial of comments construed to be anti-state, anti-government, anti-military, anti-”Turkishness”, prosecutors cannot be trusted to “get it right”. Article 301, even with the new changes, continues to lend itself to use as an ideological bludgeon and a gag on freedom of speech.
The maximum prison term, currently three years, is expected to be reduced to two years to make it difficult for those prosecuted under Article 301 to serve jail time. Prison sentences of up to two years can be commuted to suspended sentences. The question remains, then, if the punishment is being diluted so as to be negligible, why have the law at all?
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