Freedom of Expression on Turkey’s EU Accession: From Article 301 to Criticising Islam

Freedom of Expression on Turkey’s EU Accession: From Article 301 to Criticising Islam

Abstract

Since the end of Second World War, the issue of human rights has become an elaborate international practice for the European world. As a result of the establishment of Universal Declaration on Human Rights and the establishment of the European Convention on Human Rights, the issue has become an important agenda for Europe since the second half of 20th century. In parallel with those developments, the European Union’s human rights policies have significantly impacted Turkey since the 1980s. Indeed, the issue has played a crucial role during Turkey’s EU membership. The EU has often criticised Turkey because of the human rights abuses. This paper aims to explain the genuine situation in Turkey in terms of human rights as the human rights abuses in Turkey are still unknown to European world.  The article attempts to show this phenomenon by highlighting two cases: Article 301 and Fazıl Say.

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The issue of human rights has been one of the key issues in EU-Turkey relations since the 1990s. After the Helsinki European Council declared Turkey’s candidate status in the European Union, Turkey started national programmes and political reforms to improve the human rights record in the country. Despite moderate changes in freedom of expression or other democratic rights in Turkish constitution and other general laws, too many areas that were protected by an ineffective human rights system, were criticised by the EU in terms of Turkey’s accession process. According to EU’s annual progress report on Turkey, Turkey is criticised on the following areas: prevention of torture and ill treatment; reform of prison system; access to justice; freedom of expression; freedom of press; freedom of thought and religion; women’s rights and gender equality; freedom of assembly and association.

This paper does not explain all of these areas and human rights violations. It aims to show the most important issue, freedom of expression, which affects EU-Turkey relations negatively. In addition, this paper focused on this problem with regards to transformation on the freedom of expression problems from the criticising of nationalism to the criticising of Islam.

Freedom of Expression in Light of Nationalism

As regards freedom of expression, a number of journalists were released pending trial after excessively long periods spent in pre-trial detention. The third judicial reform package prohibits the seizure of written work before publication. It also eases restrictions on media reporting of criminal investigations. There continues to be room for debating some topics perceived as sensitive, such as the Armenian issue or the role of the military, and opposition views are regularly expressed. However, these reforms fall short of a significant improvement regarding freedom of expression. The increasing incidence of violations of freedom of expression raise serious concerns, and freedom of the media continued to be further restricted in practice. The increasing tendency to imprison journalists, media workers and distributers fuelled these concerns. The European Court of Human Rights received a large number of applications concerning violations of freedom of expression by Turkey.” (European Commission, 2012 Turkey Progress Report, pp. 21-22).

These sentences were in the European Commission’s 2012 Turkey Progress Report. Indeed, Turkey has an important historical process with respect to violation of human rights in freedom of expression. Turkey faced two military coups in 1971 and 1980. These military coups caused anti-democratic constitution and laws in terms of the issue of human rights (Darendeli, 2012). Freedom of expression has become one of these problems during that period. Kurdish and Armenian issues, radical Islamism and communism have become problematic areas in terms of freedom of expression in that time. Fulton explains this phenomenon below:

Many of the Turkish government’s reservations about freedom of speech have developed from insecurities regarding past conflicts. The government’s most controversial legislation has roots in the age-old tensions between Turks and the ethnic Armenians and Kurds living within Turkey. Because it is in Turkey’s interest to appear united and in control of its territory, Ankara has used the conflicts as pretexts for limiting free expression.” (Fulton, 2008, p. 26)

These matters were included in the Türk Ceza Kanunu (Turkish Penal Code) (TCK) until the 1990s. Restrictions on the freedom of expression based on Article 141 and 142 (about communist and socialist propaganda) and Article 163 (radical Islamist propaganda) and other general settlements have restricted freedom of expression in Turkey (Christensen, 2010).  Moreover, the EU has requested from Turkey to lift these restrictions from its constitution and laws since the 1990s. In 1991, the national assembly lifted Articles 141, 142 and 163 in 1991, however the successor law named as the Anti-Terror Law has created similar problems about the issue of freedom of expression during the 1990s (Yildiz, 2005). In 1999, after the declaration of Turkey’s candidacy in Helsinki, the Turkish government started political reforms on freedom of expression. A number of amendments were made to the TCK in relation to improvement in human rights (Dogan, 2006). Nevertheless, Article 301 has been the major problem for Turkey with regards to the relations with the EU on the value of freedom of expression. During those discussions, the case of Hrant Dink has been one of the well-known cases and this research attempts to demonstrate this case in regards to EU-Turkey relations and freedom of expression.

Hrant Dink Case and Article 301

Hrant Dink was a Turkish-Armenian editor, journalist and columnist, editor-in-chief of the bilingual Turkish-Armenian newspaper Agos and was a prominent member of the Armenian minority in Turkey. Dink was prosecuted three times for denigrating Turkishness under the Article 301 of the Turkish Penal Code. He was acquitted the first time, convicted and received a suspended six-month jail sentence the second time, which he had appealed at the European Court of Human Rights (ECHR). At the time of his death, the prosecutor’s office was preparing to press charges in a third case. When he was acquitted the first time, the court said that; “This is disrespectful to the Turkish ancestors, martyrs, and values that form a nation.”[1]

Indeed, this decision concerned the EU and the Commission that criticised Article 301 in its progress report on Turkey. For example, the 2006 Progress Report pointed out that;

“… However, the prosecutions and convictions for the expression of non-violent opinion under certain provisions of the new Penal Code are a cause for serious concern and may contribute to create a climate of self-censorship in the country. This is particularly the case for Article 301, which penalises insulting Turkishness, the Republic as well as the organs and institutions of the state. Although this article includes a provision that expression of thought intended to criticise should not constitute a crime, it has repeatedly been used to prosecute non-violent opinions expressed by journalists, writers, publishers, academics and human rights activists” (European Commission, 2006 Turkey Progress Report, p. 14).

In the 2007 Progress Report on Turkey, the EU believed that the Turkish legal system did not fully guarantee freedom of expression in line with the European standards. The Article 301 and other provisions of the TCK that restrict freedom of expression needed to be brought into line with the ECHR. As a result of these demands together with the impact of the Hrant Dink Case, changes of the Article 301 happened (Christensen, 2010). The Article was amended by the Parliament on 30th April 2008. According to those changes, the word ‘Turkishness’ was replaced by ‘the Turkish Nation’ and reduced the maximum penalty for these cases. Nevertheless, this reform did not satisfy the European Union. EU’s 2008 Turkey Progress Report indicated that;

However, the wording of Article 301 remains largely the same, and the prior authorisation requirement opens up the possibility that the article will become subject to political consideration. So far, the Minister of Justice authorised the criminal investigations to continue in 37 cases. This includes one case which was initiated following a statement made by a Turkish writer on the Armenian issue shortly after the assassination of the Turkish journalist of Armenian origin, Hrant Dink” (European Commission, 2008 Turkey Progress Report, p. 16).

Indeed, these problematic issues have accelerated with the Adalet ve Kalkınma Partisi’s (Justice and Development Party) (AKP) policies in light of political Islam. Secularism has become one of the problems in terms of freedom of expression after the increase of Political Islam in Turkish public and political life (Bogdani, 2011). The case of Fazil Say was a good example to explain this phenomenon.

Criticising Islam: The Case of Fazıl Say

World-renowned Turkish pianist Fazıl Say had been given a suspended 10-month jail sentence for insulting Muslim values on his Twitter account in 2013. Say is an important artist and he defends the value of secularism in the Republic of Turkey. Moreover, Fazıl Say posted several comments on social media in which he criticised Islamic values. In one of those cases in 2013, an Istanbul-based court found Say guilty over a series of posts on the social networking site Twitter. In one of the examples of his posts, he says: “I am not sure if you have also realised it, but if there’s a louse, a non-entity, a lowlife, a thief or a fool, it’s always an Allah-ist.”[2]

In April 2013, the İstanbul 29th Court of First Instance ordered the retrial for Say after the defendant appealed a ruling by the İstanbul 19th Peace Court that sentenced him to 10 months in prison. The court delayed the announcement of the verdict and mentioned that Say would be sent to jail if he commits a similar crime in the next five years. The prosecutor’s office found that Say’s statements run contrary to the first and third points of Article 216 of the TCK. These points concern the offenses of “fomenting hatred and enmity among the public” and “insulting religious values.”[3]

Most of artists and intellectuals believe that this view is only a non-violent criticism about Islam. Their critics have accused the governing AKP of undermining Turkey’s secular values and pandering to Islamists. Additionally, the EU has concerns about the increase of human rights violations in freedom of expression in Turkey and the Fazıl Say case supports their worries. After the decision of the İstanbul 19th Peace Court, Maja Kocijancic, spokeswoman for the Commission, the European Union executive said that;

The Commission underlines the importance for Turkey to fully respect freedom of expression in line with the European Convention on Human Rights and case law of the European Court of Human Rights. Turkey’s bid to join the European Union has been stalled partly due to shortcomings in democratic reforms and “recurring infringements of the right to liberty and security and to a fair trial, as well as of the freedom of expression, assembly and association.”[4]

Overall, freedom of expression has been an important problematic issue for Turkey during the EU accession process since the 1990s. First of all, the idea of communism, Kurdish nationalism or radical Islam had been seen as an important threat by the Turkish state in the 1990s (Fulton, 2008). After the Helsinki Council in 1999, the Turkish government began to reform this situation with constitutional and law changes. However, the AKP government transformed Turkey’s way from Europeanisation to political Islam after 2007 and the human rights violations in freedom of expression have increased during this period (Owen, 2009). This problem is one of the most important obstacles for Turkey’s accession to the EU according to the EU’s view and documents like Progress Reports.

Çağlar Ezikoğlu, PhD Candidate, Aberystwyth University, Department of International Politics

Please cite this publication as follows:

Ezikoğlu, Ç. (August, 2015), “Freedom of Expression on Turkey’s EU Accession: From Article 301 to Criticising Islam”, Vol. IV, Issue 8, pp.48-54, Centre for Policy and Research on Turkey (ResearchTurkey), London, Research Turkey. (http://researchturkey.org/?p=9654)

Bibliography

Bogdani, Mirela (2011) “Turkey and the dilemma of EU accession: when religion meets politics,” London&New York, I.B. Tauris.

Christensen, Miyase (2010) “Notes on the public sphere on a national and post-national axis: Journalism and freedom of expression in Turkey,” Global Media and Communication, 6:2, pp.177-197.

Darendeli, Atilla (2012), “Turkey and the European Union,” Biblioscholar Dissertations, Basingstoke.

Dogan, Nejat (2006) “Human Rights and Turkey’s Bid for EU Membership: Will “Fundamental Rights of the Union” Bring Fundamental Changes to the Turkish Constitution and Turkish Politics?” Turkish Studies, 7:2, pp. 243-259.

European Commission, “Turkey, 2012 progress report,” [Accessed Date on 2nd July 2013] Available at: http://ec.europa.eu/enlargement/pdf/key_documents/2012/package/tr_rapport_2012_en.pdf

Fulton, Lauren (2008) “A Muted Controversy: Freedom of Speech in Turkey,” Harvard International Review, 30:1, 26-29,

Owen, Parker (2009) “Cosmopolitan Europe and the EU-Turkey question: the politics of a common destiny,” Journal of European Public Policy, 16:7, pp.1085-1101.

Yildiz, Kerim (2005) “The Kurds in Turkey: EU accession and human rights,” London, Pluto Press in association with Kurdish Human Rights Project.

Endnotes

[1]http://arsiv.ntvmsnbc.com/news/346067.asp?cp1=1

[2]http://www.bbc.co.uk/news/world-europe-22151212

[3]http://www.todayszaman.com/latest-news_turkish-court-sentences-pianist-say-to-10-months-after-re-trial_326913.html

[4]http://www.businessweek.com/news/2013-04-15/turkish-pianist-say-sentenced-for-insulting-islam-on-twitter

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