A Delicate Dance:Freedom to Publish in Turkey

Unfortunately we are living at a time when "Freedom to Publish" is at a crossroads. Once again the world has started to look like a place divided between the powers of evil and good, different parties having different notions of evil and good, of course.

The world public has witnessed in the recent years that the "big powers" have shown an obvious disregard to the most fundamental principles of international law, and to many values of humanity, assumed to be our common goal for a democratic world, like truth, posterity, and morality.

We have witnessed the "big media" turn into "embedded media", giving us a selected portion of the "truth" and have had to depend more and more on smaller press, and some news we could only obtain from the internet, which sometimes proved to be less dubious than mainstream media.

This unfortunately is also a time when independent publishing is losing more and more ground. At a recent meeting in Dakar, where some 60 independent publishers from all over the world gathered under the title "Independent Publishers for an Alternative Globalization", the reports showed that though for different reasons, the trend was more or less the same all over the world: In poorer countries, for economical/political reasons, independent publishers have very concrete problems like finding paper or even printing machines, in most countries the problem of censorship continues or even increases, in yet others there is an unclaimed or claimed war going on and destroying the cultural life of the country, and in the richer countries we witness media conglomerates or publishing chains buy and change small independent publishers.

I believe it is very dangerous that this is happening at a period when notions once thought outdated, like "the clash of civilizations" are being revived once again, and when we need to listen to each other more than ever.

In the report "Anti-Terrorism, Writers and Freedom of Expression" prepared by the Writers in Prison Comm ittee of the International PEN, it is stated that "an anti-terror climate" has been created by the events of 9/11 and subsequent responses to those events.

"This climate is both created and perpetuated by a trend of cracking down on local dissent." Focusing on a global survey on 35 countries, the report shows that from the United States of America (USA) to Australia, from Canada to Catalonia, from Peru to Sierra Leone, "the anti-terrorism climate", sometimes leading to the passing of new legislation, has led to self-censorship and state censoring. And even when there is no obvious obstacle to freedom of expression, certain views are barred from the public through other means.

As one respondent for UK states, "In theory, writers can write freely whatever they like but whether certain views will get published is another thing."

One telling example is the case of Prof. Dr. Haluk Gerger. Prof. Gerger had encountered freedom of expression problems in Turkey some years ago and was taken up as a case in the International PEN.

USA authorities had granted him a ten year visa, by way of support. But when he tried to enter the USA after September 11, he was rejected at the border and his visa was cancelled. The case he opened against US authorities is still pending.

So this sure is an important time to be discussing "The Freedom to Publish".

Let me try to sum up where the condition of Turkey stands in this picture.

First of all, I should state that with over 400 active independent publishers, Turkey sets a rare example. Independent, in terms of finance, political affiliations, independent from the state or conglomerates.

This of course is the result of a mixed blessing: The publishing market in Turkey is not stable enough to satisfy big capital, with the precarious economical conditions and heavy problem of pirating, so the market is left to independent publishers, who are ready to struggle for survival. Also, the decline of academic publishing after the coup d'etat in 1980 and subsequent change of university law, has made it possible for "lay" Turkish publishers to have very strong non-fiction lists, publishing the works of academicians that were unable to get published by state owned university presses. We also owe our survival to our young population, a youth quite political and eager to discuss, which makes semi-academic publishing possible.

In my years of publishing over 20 years, I have had to fight many a war for different types of Freedom of Expression. I am happy to say we have been able to make many changes, but sometimes it is frustrating to see that a certain law article lifted after a great struggle returns under another name, or just through practice, without even being named.

Last year, according to the report of the Turkish Publishers Association, 43 books were banned and 37 writers and 17 publishers were put on trial. Main reasons were the Kurdish question, obscenity, and expressing opinions regarding the practices of the State and its officials.

The Association states that this year less cases are opened against publishers and authors, and more trials result in acquittal.

There is a tug of war between forces in Turkey that want to further freedom of expression, and those who could do much better without it. This however does not constitute as black a picture as some prefer to make it look, but rather a "Delicate Dance" is going on.

I could not prepare my speech up to the last moment, because every day there is a change in Turkey. Some of my colleagues here will remember the speech I made in Geneva, two months ago. Two books I mentioned there, that were put to court for obscenity, one of them a book by my publishing house, WOMEN'S SLANG DICTIONARY, have been acquitted meanwhile.

This is good news, since last year, Article 426 of the Turkish Penal Code was referred to, to confiscate and ban books by authors like Elfride Jelinek, Jonathan Ames, Pedro Almadovar and Irvine Welsh, on the grounds of obscenity.

This Article has now been changed with the EU harmonization laws, and literary and academic works are supposed to be exempt from this article of law. But as the "Committee to Protect Minors from Obscene Publications", a body established under the Prime Ministry, to work as official experts for judicial bodies in cases concerning obscenity is not abolished, we are cautious in our celebrations. As you can imagine, if official expertise is left to a committee linked to the government, there will always be the danger of having political/ideological decisions.

We recently had two historic advances: the release pending trial of former Democracy Party (DEP) deputies and the start of broadcasts in minority languages, including Kurdish, in the state television.

We also welcomed the abolition of State Security Courts. But as recent as 15 June, Abdurrahman Dilipak, journalist and author, was tried at the SSC for criticizing some generals in an article called "When the Generals are not Obedient". His lawyers stated that it is impossible for Mr. Dilipak to be tried at the SSC with the recent changes in the law, so the prosecutors asked the case to be adjourned till July 12th to decide about this. Let us see how the result will be.

There has been acquittal in the cases concerning Article 312/2 of the Penal Code, "incitement to hatred on the basis of class, religion or race", which had been used previously as a means of penalizing writers who support minority issues.

Two examples of this are the acquittal of Selma Koçiva / Lazona (Akyüz) and Ömer Asan's Pontus Culture (Belge). Gazi Çağlar's "September 12 is Being Judged" (Belge) is also acquitted.

The Report of Publishers' Association states that the acquittals of Jwadie's "Historical Roots and Development of Kurdish Nationalism" (İletişim), Naci Kutlay's "Kurds in the eve of 21st Century" (Peri), Tori's "Famous Kurdish Scientist and Intellectuals" (Sorun) and "Mustafa Barzani and Kurdish Liberation Movement" (Doz) show the positive climate concerning Kurdish questions after the last improvements of the law in Turkey.

Though there is an obvious improvement, we can say that cases of "judicial harassment" continue: Ahmet Kahraman's "Kurdish Resurrection" is still being tried. But I should add that only two days ago a very important step has been taken: Attorney General for Supreme Court of Appeals has just made a public statement that this Article should be re-evaluated and has advised that all cases tried under this Article should be freed unless there is an open and evident call for violence.

One Article still creating freedom of expression problems is Turkish Penal Code's Article 159, that forbids statements which "exceed the limits of criticism" of "Turks, Republic, Parliament, the government offices, the state's military or security forces or the judiciary". The re-print of Fikret Başkaya's book "Articles against the Current" has been put to court under this article and the case will continue in September 9th.

Herkül Milas's book "Exile" based on the memories of Greeks that were sent from Anatolia during the compulsory exchange of populations between Greece and Turkey in 1924 was tried for "insulting Atatürk's memory". Journalist Hakan Albayrak, is serving a prison sentence of five months under the Law Protecting Ataturk (Article 5816, dated 1951), for an article he wrote for Milli Gazete.

Article 8 of the Anti-Terror Law, prosecuting writers and publishers on the grounds of "advocating terrorist propaganda" was lifted. However, Article 7 of the same law and Article 169 of the Turkish Penal Code are sometimes applied in its place, i.e. "aiding and abetting a terrorist organization".

The Press Law and Law on the Intellectual and Artistic Properties are sometimes also used for this end. "Yeniden Özgür Gündem" newspaper has had to end its publication in February 28th, after 545 days of publication. During this time, the newspaper was closed down for 4 days, the editor in chief was imprisoned for 25 months and the newspaper has had to pay very high money fines.

Recently, a journal called "Dersim" was put to court for publishing Kurdish articles, not because they were publishing in Kurdish, but because they had not stated in their formal application that they would be using Kurdish! This case has been postponed to 29th June and since the Press Law has just been changed, we are yet to see how this change will effect this case.

The Press Law, which was used to force publishing houses and journals to close down, by giving heavy fines according to it, on such grounds as "failure to notify the authorities on time about the address or editor changes" and "delay in delivering the copies of books and magazines to the Public Prosecutor" has been heavily criticized in Turkey and I am happy to state that it has just been changed.

The most important change is the implementation of European Convention of Human Rights Article 10 into this law, under Article 3, reading: "The press is free. This freedom covers getting, disseminating, criticizing and interpreting information and creating a work. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

You will recognize this is the same as the second chapter of Article 10 of European Convention of Human Rights, now a part of the Press Law in Turkey, thanks to the dedicated work of lawyers working for freedom of expression.

It is also stated in Article 12 that the owner or the responsible editor for a journal can not be forced to disclose its informants or sources nor be a witness in related cases.

There are also certain restrictions to penal responsibility. For example, if the creator of a certain work is known, the publisher or others in charge are no longer taken to court.

Contrary to our fears, fines in general were decreased in the new Press Law, especially for "administrative failures". However, in case of publication against the reputation or rights of an individual, or untrue publication, and if "the right to respond to or correct such news" is not allowed, heavy penalties are given, and if those in charge of the press insist on not allowing individuals to exercise these rights, and do not pay these fines, they may be imprisoned.

This new Press Law brings restrictions to confiscation of books and periodicals. Unless there is a decision by the judge, the Public Prosecutor can only confiscate three copies of a published work, and if fails to get a judge's approval within 48 hours, confiscation is abolished.

If the book or periodical is confiscated according to the following law articles, than all of the copies can be taken, but again subject to a judge's decision: Crimes against Atatürk (5816), Constitution Art. 174 Crimes Concerning Republican Revolutions, Turkish Penal Code 146/2, 153/1 and 4, 155, 311/1 and 2, 312/2 and 4, 312/a, Anti-Terror Law Art. 7/2 and 5.

These are articles on crimes against the unity of the state, urging the soldiers to disobey, provoking the public to commit a crime, advocating crime, terrorizing the public.

On the Article on "intervening the judiciary process" of the New Press Law, it is stated that "it is forbidden to comment on the judge or court procedure till a case is over", and we worry that this may be used prevent some democratic criticism from being published.

Just a few days ago, Interior Ministry has announced a new circular confirming that open-air press conferences, public information tables and distributing leaflets are not subject to notification or permission requirements.

Hüsnü Öndül, Head of Turkish Human Rights Association, called this "an incredible step forward". The NATO summit in Istanbul on 28-29 June will be an opportunity to test these good news for freedom of assembly.

To sum up, I believe that we are all in this dance. We may have great powers who prefer to have strict control over what is being said and written in the world, but a lot depends on how open we as publishers, authors, journalists, human rights workers will be to ideas not exactly like ours, and to cultures said to be different from ours. I believe we will be much stronger if we take care not to make hierarchies between freedoms, except for freedom of expression without which we will have no freedom. (MGS/NM)

* Muge Gursoy Sokmen, Metis Publishers, Turkey, Speech (in a shorter version) delivered on 21 June 2004, at the 27th Congress of International Publishers Association in Berlin.