TURKEY: Reforms on Freedom of Expression
In April 2003, at the 59th Session of the United Nations Human Rights Commission, International PEN, the world association of writers, welcomed legislative and constitutional changes in Turkey that have led to the easing of the constraints against writers who focus on controversial themes, specifically criticism of state bodies and officials, and on Kurdish issues.
The organization is pleased to report that today, a year later, there are no writers in prison in Turkey specifically for what they have written. However there remains the persistent problem of continuing trials faced by publishers of books that fall foul of laws that continue to be applied against publications, leading to the confiscation of books and banning.
The main laws used to prosecute publishers are Articles 159, 312 and 426 of the Turkish Penal Code (TPC) as well as the Articles 7 and 8 of the Anti-Terror Law (the latter article was repealed in 2003). These are applied specifically to books that are considered to have contained elements of "obscenity" (Article 426), "incitement of people to enmity and hatred" (Article 312), "insulting or ridiculing Turkish national identity, the Republic, the Parliament, the Government, State Ministers, the military or security forces of the State, or the Judiciary" (Article 159). (See Appendix I for the full text of these articles, including the most recent amendments)
International PEN, alongside the International Publisher's Association, is monitoring the trials against more than 40 such books and publications that have been brought to the courts during the past year. The usual outcome of these trials is fines, which are in some cases heavy. If the fines are not paid, the publishers can be prosecuted further and can eventually be imprisoned. In a considerable number of cases, the trials end with acquittal. However, PEN believes that whatever the outcome of these trials, the very fact that the publishers have been subjected to a series of long, time-consuming and expensive court hearings is in itself a form of harassment and punishment for daring to produce works which touch on sensitive issues. The financial, time and emotional cost of the hearings to the defendants is such as to act as a deterrent against future publications.
"Harmonisation Law Packages"
Turkish Government has enacted seven "Harmonisation Law Packages" since 2002 (Three in February, March and August 2002 and four more in January, February, July and August 2003) aimed at bringing its legislative system to a compliant level with the European Union norms. The introduction of these reform laws led to a number of amendments in various areas of law, including the Turkish Penal Code and other punitive laws that hade been posing a serious threat to freedom of expression and publication.
The significant amendments in the aforementioned laws are as follows:
Article 159 of the Turkish Penal Code:
Following the introduction of the First Harmonisation Law (Law No 4744), which came into force on 06 February 2002, the minimum prison sentence for the violation of Article 159 of the TPC was reduced from "one to six years of heavy imprisonment" to "one to three years of imprisonment".
The Third Harmonisation Law (Law No 4771), which came into force on 03 March 2002, amended Article 159 again and the expression of thoughts was not considered as punishable actions as long as "the sole intention is criticism." The Seventh Harmonisation Law (Law No 4963), which came into force on 07 August 2003, made further amendments and the minimum prison sentence for the violation of Article 159 was reduced from "one to three years of imprisonment" to "six months of imprisonment."
Article 312 of the Turkish Penal Code:
The First Harmonisation Law abolished the imposition of heavy fines, stating that the actions which were considered to have amounted to the violation of the Article 312 in its earlier version would be considered so only if the offence of "incitement" was committed "in a way that would pose a danger against the public order."
Article 426 of the Turkish Penal Code:
The only amendment to this article was made following the Seventh Harmonisation Law. A new clause of exemption was added to the definition of the offence of "issuing obscene publications", making exempt from this definition "works of scientific, artistic and literary nature""
Articles 7 and 8 of the Anti-Terror Law:
The First Harmonisation Law amended the earlier version of the Article 7 of the Anti-Terror Law so that, in order to punish the person(s) who were considered to have committed the offence of "making propaganda for the terrorist organization", the person(s) should have "advocated the use of methods of terror."
The heavy fines were also increased tenfold, from "50 million to 100 million liras" to "500 million to 1 billion liras." The Seventh Harmonisation Law further amended this article, by adding the word "violence" into the definition of the breach of Article 7: if person(s) "advocated the use of violence and other methods of terror."
The First Harmonisation Law initially reduced the length of the ban of broadcast media under Article 8 from "1 to 15 days" to "1 to 7 days." Article 8 was subsequently completely repealed by the Sixth Harmonisation Law (Law No 4928), which came into force on 15 July 2003.
Freedom of Expression after the Harmonisation Laws
Despite the introduction of the Harmonisation Laws in the past two years, neither the banning of books and periodicals or the prosecution of journalists, writers and publishers had been halted.
The Human Rights Association of Turkey (IHD) recorded the number of banned and confiscated publications as 104 throughout 2002 and 102 in 2003. PEN has on its records over 60 writers, publishers, broadcasters and journalists whose works were banned and who were put on trial from January 2003 onwards.
At least four of them have received heavy fines, including publishers Omer Faruk of Ayrinti Publishers (4.2 billion liras), Bedri Baykam of Piramit Publishers (8.5 billion liras), and Nihat Tuna of Iletisim Publishers (3.3 billion liras).1A least 33 books have been banned and copies of the vast majority of them were already confiscated before the commencement of the court proceedings. Publishers who receive enormous fines and who cannot cope face several threatening situations if they do not or cannot pay the fines: risk of bankruptcy, risk of seizure of their assets by bailiffs, and risk of further prosecution for the failure to pay, with the threat of imprisonment.
PEN continues to observe that writers and publishers in Turkey are still not able to enjoy the exercise of their right to freedom of expression under the legislative changes. Although an additional clause in Article 426 of the TPC states that "the works of scientific, artistic and literary nature are exempt" from being defined as "obscene publications", publisher Omer Faruk of Ayrinti Publishers and translator Funda Uncu Irkli are still on trial for the Turkish translation of Chuck Plachniuk's book Choke. Similarly, publisher Semih Sokmen of Metis Publishers and Filiz Bingolce , author of an academic dictionary entitled Dictionary of Women's Slang, have been on trial under Article 426.
Although the current legislation allows the free movement of books, which are not subject to a ban, law enforcement authorities and civil servants in Turkey still use unauthorised powers to put pressure on publishers and printing houses. Senfoni Publishers reports that The Right for Kurdish Language in Turkey and Kurdish Migration, two books by co-authors Koray Duzgoren and Kerim Yildiz, were threatened officials who visited the printing house and tried to intimidate the printers so as to stop the printing of the book.
The exportation of the Turkish translation of Masoud Barzani's book, Barzani and the Kurdish National Freedom Movement, was not allowed by a Turkish customs officer on 7 March 2003 on the grounds of "being harmful", although the book was being sold without any restriction in Turkey. Because of this incident, translator Vahdettin Ince, publisher Ahmet Zeki Okcuoglu of Doz Publishers and the manager of the Can printing house Bedri Vatansever were subsequently put on trial under Article 312 of the TPC and it took eight months for them to secure acquittal.
Following the repeal of Article 8 of the Anti-Terror Law; Ismail Besikci, author of numerous books on Kurdish issues, and his publisher Unsal Ozturk of Yurt Publishers, applied to the State Security Court in Ankara on 30 July 2003 for a formal appeal for annulment of the court decision on the confiscation of 20 book titles which had been confiscated under Article 8. However, the State Security Courts No.1 & No.2 in Ankara rejected two separate applications in December 2003 and January 2004 almost entirely, lifting the confiscation order only for 5 of the titles (two of them in 2 volumes each) on the grounds that "contents of the confiscated books still carry the elements of crimes defined in Article 312/2 TPC and Article 7 Anti-Terror Law" as well as that "confiscations had already taken place and there was no need for further legal procedure".
Legislative reforms: conflict between the theory and the practice?
Article 144 of the Turkish Constitution states that the "Supervision of judges and public prosecutors with regard to the performance of their duties in accordance with laws, regulations, by-laws and circulars (administrative circulars, in the case of judges), investigation into whether they have committed offences in connection with, or in the course of their duties, whether their behaviour and attitude are in conformity with their status and duties and if necessary, inquiry and investigations concerning them shall be made by judiciary inspectors with the permission of the Ministry of Justice. The Minister of Justice may request the investigation or inquiry to be conducted by a judge or public prosecutor who is senior to the judge or public prosecutor to be investigated."
PEN notes that there are discrepancies between the theory of the legislative changes and their application by the judiciary bodies in Turkey. A recent example of this is the Freedom of Expression (FoX) case.
Since 1996, a campaign challenging the numerous laws that penalise free expression has been running in Turkey, headed by the musician and composer, Sanar Yurdatapan. The campaign centres around the publication of a series of booklets, entitled "Freedom of Thought" containing articles written by intellectuals, human rights and labour activists, lawyers, writers, artists, etc, to which sometimes over 1,000 other activists sign their names as joint publishers (for further information, see Appendix I).
Although a hearing on 29 September 2003 resulted with acquittal, on 27 January 2004 the Üsküdar Criminal Court of First Instance in Istanbul, started to hear the retrial of Sanar Yurdatapan, Cengiz Bektas, Erdal Öz and owner of the printing house Sadik Dasdögen in connection with the book Freedom of Thought 2000. The hearing was adjourned to 8 April 2004.
PEN considers that further training and supervision of judges and public prosecutors will play a significant role in achieving full compliance with the changes in the legislative system, leading to a situation where writers and publishers would not face prosecution for solely exercising their freedom of expression as safeguarded by the Harmonisation Law packages. This will also help to challenge the impunity that may arise from non-compliant practices.
There is still scepticism in Turkish public opinion about whether there is a genuine commitment towards the implementation of the reforms through legislative changes. Many believe that, although it is a pleasing development to see the legislative changes, the law enforcement authorities, particularly the judiciary, appear not to be willing or are unable to take then on board. As a recent Economist article states:
"Indeed, the panoply of repressive laws is so far-reaching and complex that even the best-informed politicians and lawyers find it hard to identify which laws and articles have been swept away and which could still be invoked. Moreover, much still depends on the regulatory bodies -the broadcasting watchdog, for instance- and the judges and prosecutors who oversee and interpret the supposed rules.
Again and again, liberal-minded Turks inveigh against the enduring "mentality of the state" and the reluctance of the old guard -bureaucratic, judicial and military- to respect individual rights, whatever the law may say. "The culture of impunity [for state organs] and the culture of denial [of past wrongs] is still so strong," sighs a wary western diplomat. Many ordinary Turks think it doesn't matter much what the law-book says: if the generals and judges are determined, they can still always get round it. "It's not the rule of law, it's still the law of the ruler," says another sceptical foreign observer."
(http://www.economist.com/world/europe/displayStory.cfm?story_id=1957449)
Turkey has ratified both the United Nations Declaration on Human Rights and the European Convention on Human Rights, both of which carry clauses that protect the right to freedom of expression. Through the remaining legislation that penalises those whose only act is to write or publish on controversial issues, and the continuing presence in Turkish courts of writers and publishers, the Turkish government has not yet shown a complete commitment to the principles to which it claims to uphold.
International PEN therefore repeats it call on the Turkish authorities to once again review all legislation that allows for the penalisation of those who write on or publish issues that are not in accord with the views of those in authority. It also calls for the removal from Turkish law all remaining impediments to the practice of the right to freedom of expression.
Appendix - I
Turkey - Facts and Figures in 2003
A - banned/confiscated books:
1. Title: Parti ve Devrim Sehitleri Albumu (Photo-book of the Martyrs of the Party and the Revolution)
Publisher: Umut Publishers
Author: Yildiz Goksu (f) & Tuncay Deniz
Charges/related legislation: "Making propaganda for the TIKKO [Workers' & Peasants' Liberation Army of Turkey]"
Penalty applied (if case concluded): The book was confiscated in January 2003.
2. Title: 100 Sayida Vatan Dizisi - 2 (Vatan in 100 Issues - Vol.2)
Publisher: Anadolu Publishers
Author: Ali O. Kose (editor)
Charges/related legislation: "Making terrorist propaganda in the articles about the hunger strikes [in prisons]". The book was a collection of testimonies and articles on "fasting-to-death" actions in Turkish prisons.
Penalty applied (if case concluded): The book was confiscated in January 2003.
3. Title : Kasirga Taburu (The Hurricane Battalion)
Publisher: Aram Publishers
Author: Mehmet Sebatli
Charges/related legislation: "Abetting an illegal organisation by the way of making propaganda"
Penalty applied (if case concluded): The book was confiscated.
4. Title: Yatak Odasinda Felsefe (Philosophy in the Bedroom)
Publisher: Ayrinti Publishers
Author: Marquis de Sade
Charges/related legislation: Obscenity (Article 426 of the Turkish Penal Code). It was the first ever translation of this book into Turkish, 207 years after its first publication. Both Omer Faruk (publisher) and Kerim Sadi (translator) were put on trial.
Penalty applied (if case concluded): Omer Faruk was considered to be the "actual perpetrator" as Kerim Sadi could not be summonsed and his whereabouts could not be established. Therefore Omer Faruk received a fine of 4 billion 285 million and 744 thousand liras. The Court also ordered for the confiscation and destruction of all copies. Destruction usually takes place either by sending the copies of the book to pulp factories or by incineration.
5. Title: Kina ve Ayna (Henna and Mirror)
Publisher: Si Publishers
Author: Muslum Yucel
Charges/related legislation: The book was confiscated on 28.03.2003 on the grounds of "making propaganda for the terrorist organisation PKK [Kurdistan Workers' Party]" in the chapters entitled "PKK'de Olum Kultu" (The Death Cult in the PKK) and "Kendini Vurmak" (Shooting Oneself).
Penalty applied (if case concluded):
6. Title: Kurtlerde Olum ve Intihar (Death and Suicide among Kurds)
Publisher: Si Publishers
Author: Muslum Yucel
Charges/related legislation: "Making propaganda for the terrorist organisation PKK [Kurdistan Workers' Party]"
Penalty applied (if case concluded): The book was confiscated.
7. Title: Ikinci Caddenin Cilgin Yesili (The Crazy Green of the 2nd Street),
Publisher: Piramit Publishers
Author: Erje Ayden
Charges/related legislation: Publisher Bedri Baykam was charged with "publishing obscene books" (Article 426 of the Turkish Penal Code) for the book.
Penalty applied (if case concluded): On 11.06.2003 Bedri Baykam received a total fine of 8 billion 571 million and 490 thousand liras (including the fine for another book. See the entry below). The Court also ordered the confiscation and destruction of the book.
8. Title: Hauptbahnhof'tan Bir Trene Bindim (I Took a Train at Hauptbahnhof ["Underground Station" in German])
Publisher: Piramit Publishers
Author: Erje Ayden
Charges/related legislation: Publisher Bedri Baykam was charged with "publishing obscene books" (Article 426 of the Turkish Penal Code) for the book.
Penalty applied (if case concluded): On 11.06.2003 Bedri Baykam received a total fine of 8 billion 571 million and 490 thousand liras (including the fine for another book. See the entry above). The Court also ordered for the confiscation and destruction of the book.
9. Title: Tikanma (Choke)
Publisher:
Author: Chuck Palahniuk. Translated by Funda Uncu Irkli (f)
Charges/related legislation: Publisher Omer Faruk and translator Funda Uncu Irkli were charged with "publishing obscene books" (Article 426 of the Turkish Penal Code). Trial to commence in April 2004. Copies of the book already confiscated in July 2003.
Penalty applied (if case concluded):
10. Title: Ozgur Insan Savunmasi (Defence of the Free Man)
Publisher: Cetin Publishers
Author: Abdullah Ocalan
Charges/related legislation: "Making propaganda against the indivisibility of the State" (Article 8 of the Law No 3713 on Fighting the Terror).
Penalty applied (if case concluded): The book was confiscated.
11. Title: Iskencede Direnme Savasi (The War of Resistance under Torture)
Publisher: Yediveren Publishers
Author: Remzi Basalak (editor; deceased)
Charges/related legislation: The book was a collection of testimonies by Remzi Basalak about his experience under torture at the police headquarters of the city of Adana. Basalak was allegedly tortured to death there.
Penalty applied (if case concluded): The book was confiscated.
12. Title: Yarinlara Yol Almak (Heading Towards the Future)
Publisher: Aram Publishers
Author: A collective anthology of memoirs
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
13. Title: Bir Tarih Boyle Yapildi - Ates Altinda (A History was Constructed in This Way - Under Fire)
Publisher: Varyos Publishers
Author: Collection of articles
Charges/related legislation: "Making propaganda to incite people towards using violence and terror."
Penalty applied (if case concluded): The book was confiscated.
14. Title: Tufanda 33 Gun (33 Days Under Deluge)
Publisher: Aram Publishers
Author : Kayhan Adnut
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
15. Title: Komsomol (Komsomol ["Communist Union of Youth" during USSR era])
Publisher: Umut Publishers
Author: Collection of articles
Charges/related legislation: "Making propaganda for the TIKKO [Workers' & Peasants' Liberation Army of Turkey]"
Penalty applied (if case concluded): The book was confiscated.
16. Title: Cezaevi Direnisleri - 3 : Ulucanlar (Resistance in Prisons - Vol.3 : Ulucanlar [name of a Turkish prison])
Publisher: Haziran Publishers
Author: Collection of articles
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
17. Title: Juliette
Publisher: Civi Yazilari Publishers
Author: Marquis de Sade
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
18. Title: Seriat Istiyoruz (We Want Shariah)
Publisher: Bumerang Publishers
Author: Azize Celik
Charges/related legislation: "Inciting people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences" (Article 312 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
19. Title: 21. Yuzyil Kadin Manifestosu (The Women's Manifesto in 21st Century)
Publisher: Hevi Publishers
Author: Collection of articles
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
20. Title: Kadinin Toplumsal Sozlesmesi (Women's Social Convention)
Publisher: Hevi Publishers
Author: Collection of articles
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
21. Title: Kawa'nin Ezgisi (The Tune of Kawa [Kawa is an ancient folk hero of Kurds])
Publisher: Hevi Publishers
Author: Berjin Hakli
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
22. Title: Hayat Bir Kere Yasanir (You Live [only] Once)
Publisher: Deng Publishers
Author: Nurettin Basut
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
23. Title: Gecmisten Bugune Kurtler (Kurds - From Past to Present Day)
Publisher: Deng Publishers
Author: Kemal Burkay
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
24. Title: Carin (Quatrains)
Publisher: Deng Publishers
Author: Kemal Burkay
Charges/related legislation: The book was a collection of poems in Kurdish.
Penalty applied (if case concluded): The book was confiscated.
25. Title: Divan 3 : Kine Em (Anthology Vol.3 : Who am I?)
Publisher: Deng Publishers
Author: Cigerxwin
Charges/related legislation: The book was published in Kurdish original. Cigerxwin has been considered the most famous classical poet in Kurdish literary history.
Penalty applied (if case concluded): The book was confiscated.
26. Title: Divan 4 : Ronat (Anthology Vol.4 : Enlightenment)
Publisher: Deng Publishers
Author: Cigerxwin
Charges/related legislation: The book was published in Kurdish original. Cigerxwin has been considered the most famous classical poet in Kurdish literary history.
Penalty applied (if case concluded): The book was confiscated.
27. Title: Ararat'taki Esir General (The Captive General in [mount] Ararat)
Publisher: Doz Publishers
Author: Mustafa Balbal
Charges/related legislation:
Penalty applied (if case concluded): The book was confiscated.
28. Title: Porno (Porn)
Publisher: Studyo Imge Publishers
Author: Irvine Welsh
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
29. Title: Olaganustu Uc Kimyasal Ask (Three Tales of Chemical Romance)
Publisher: Studyo Imge Publishers
Author: Irvine Welsh
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
30. Title: Kizgin Sarisin (Angry Blonde)
Publisher: Studyo Imge Publishers
Author: Eminem; translated by Fuat Sesen
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
31. Title: Show (Show)
Pu blisher: Studyo Imge Publishers
Author: Collection of articles by 20 Turkish writers on American rap singer Eminem
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
32. Title: Travesti Pinokyo (Transvestite Pinnocchio)
Publisher: Studyo Imge Publishers
Author : Sibel Torunoglu (f)
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
33. Title: Eminem: Gercek Slim Shady Hakkinda Kucuk bir Hikaye ve Tum Sarki Sozleri (Eminem: A Short Story on the Real Slim Shady and a Complete List of Lyrics)
Publisher: Studyo Imge Publishers
Author: Sabri Kalic
Charges/related legislation: "Publishing obscene books" (Article 426 of the Turkish Penal Code).
Penalty applied (if case concluded): The book was confiscated.
B- Trials and investigations:
34. Title: Goc - Rumlarin Anadolu'dan Mecburi Ayrilisi, 1919-1923 (Migration - The Forced Departure of the Anatolian Greeks from Anatolia, 1919-1923)
Publisher: Iletisim Publishers
Author: Herkul Milas, editor
Charges/related legislation: "Insulting Ataturk [founder of Republic of Turkey]"
Penalty applied (if case concluded): Publisher Nihat Tuna and book's editor Herkul Milas received a fine of 3 billion and 300 million liras each. Both fines suspended.
35. Title: Saklanmaya Calisilan Bir Mesale: Ibrahim Kaypakkaya (Ibrahim Kaypakkaya: A Torch Attempted to be Put Away)
Publisher: Umut Publishers
Author: A collection of articles/memoirs by leading Turkish writers on the life and struggle of Ibrahim Kaypakkaya, leader of a clandestine political organisation in 1970's. Kaypakkaya was tortured to death in 1971.
Charges/related legislation: The contributors of the book as well as the publishers and the printing house staff were summonsed to the DGM [State Security Court] to give evidence to let the court determine whether the offence of "terrorist propaganda" occurred so that they would be formally indicted.
Penalty applied (if case concluded):
36. Title: Barzani ve Kurt Ulusal Ozgurluk Hareketi (Barzani and the Kurdish National Freedom Movement)
Publisher: Doz Publishers
Author: Masud Barzani [leader of the Kurdistan Democratic Party, currently a member of the Iraqi Governing Council]. Translated by Vahdettin Ince.
Charges/related legislation: The book was the biography of Mustafa Barzani, founder of the KDP in Northern Iraq and it was written by his son Masud Barzani. First its exportation abroad was not allowed on 07.03.2003 by a Turkish Customs officer on the grounds of "being harmful". Translator Vahdettin Ince, publisher Ahmet Zeki Okcuoglu and the manager of the Can printing house Bedri Vatansever were put on trial, charged with "inciting people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences" (Article 312 of the Turkish Penal Code).
Penalty applied (if case concluded): Istanbul State Security Court acquitted all defendants on 10.11.2003.
37. Title: 12 Eylul Rejimi Yargilaniyor (12th September Regime on Trial)
Publisher: Belge Publishers
Author: Dr Gazi Caglar, editor.
Charges/related legislation: "Inciting people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences" (Article 312 of the Turkish Penal Code). Dr Gazi Caglar (editor of the book) and Ragip Zarakolu (publisher) were both put on trial.
Penalty applied (if case concluded): Both of the defendants were acquitted on 03.12.2003. However, the Chief Public Prosecutor filed a formal objection against the acquittal and therefore the Prosecution obtained the right to appeal this decision before the Supreme Court of Appeal any time 6months from the date of acquittal.
38. Title: Kadin Argosu Sozlugu (Dictionary of Women's Slang)
Publisher: Metis Publishers
Author: Filiz Bingolce (f)
Charges/related legislation: "Obscenity" (Article 426 of the Turkish Penal Code). Filiz Bingolce and publisher Semih Sokmen were both put on trial.
Penalty applied (if case concluded): Trial continues. Next hearing due on 16.06.2004
39. Title: Ozgurlesmeye Pedagojik Bakis (A Pedagogical Approach to Liberation)
Publisher: Tohum Publishers
Author: A. Dursun Yildiz
Charges/related legislation: In August 2003, publisher Mehmet Ali Varis was charged with "inciting people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences" (Article 312 of the Turkish Penal Code).
Penalty applied (if case concluded):
40. Title: Turkiye'de Kurtce Hakki (The Right for Kurdish Language in Turkey)
Publisher: Senfoni Publishers
Author: Koray Duzgoren & Kerim Yildiz
Charges/related legislation:
Penalty applied (if case concluded): Senfoni Publishers stated that the Turkish authorities tried to put pressure on the printing house not to print this book and expressed their intention to secure the confiscate if it was printed. Senfoni Publishers also stated that the pressure by the authorities came to a halt following the intervention by the lawyers representing the publishers.
41. Title: Kurt Gocu (Kurdish Migration)
Publisher: Senfoni Publishers
Author: Koray Duzgoren & Kerim Yildiz
Charges/related legislation:
Penalty applied (if case concluded): Senfoni Publishers stated that the Turkish authorities tried to put pressure on the printing house not to print this book and expressed their intention to secure the confiscate if it was printed. Senfoni Publishers also stated that the pressure by the authorities came to a halt following the intervention by the lawyers representing the publishers.
42. Title: Delal'a Mektuplar (Letters to Delal)
Publisher: Gun Publishers
Author: Huseyin Elci
Charges/related legislation: Publisher Yasin Teiskin was charged with "inciting people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences" (Article 312 of the Turkish Penal Code).
Penalty applied (if case concluded): Trial commenced in November 2003.
C - Retrials:
The Freedom of Expression (FoX) Case:
Although a hearing on 29 September 2003 resulted with acquittal, on 27 January 2004 the Üsküdar Criminal Court of First Instance, in Istanbul, started to hear the retrial of Mehmet Sanar Yurdatapan, Cengiz Bektas, Erdal Öz and owner of the printing house Sadik Dasdögen in connection with the book "Freedom of Thought 2000. The hearing was adjourned to 8 April 2004.
Background information on The Freedom of Expression (FoX) Case
Since 1996, a campaign challenging the numerous laws that penalise free expression has been running in Turkey, headed by the musician and composer, Sanar Yurdatapan. The campaign centres around the publication of a series of booklets, entitled "Freedom of Expression" containing articles written by intellectuals, human rights and labour activists, lawyers, writers, artists, etc, to which sometimes over 1,000 other activists sign their names as joint publishers.
Turkish legislation demands that such acts be brought to the courts. The complex Turkish legal system means that each booklet - published each year - entails lengthy trial processes. In most cases individual FoX activists brought to the courts are served with short prison terms, fines or acquittal.
Occasionally some have entered prison, most notably the FoX leader, Sanar Yurdatapan. The following is a summary of the present status of the campaign, naming some of those involved, and restricted to those who fall within PEN's mandate of writers and journalists.
In November 2002, Yurdatapan was honoured by Human Rights Watch for his contribution to the promotion of freedom of expression in Turkey. For further information, contact the WiPC office.
FoX 2000: book containing 60 articles in breach of Articles 7 and 8 of the Anti-Terror Law and article 312 of the Penal Code. These are being heard by the State Security Courts. Others are in breach of article 159 of the Penal Code and are being handled by the Heavy Criminal Court. Still others relate to Article 155 only dealt with by the Military Court, and finally others relating to "insulting Ataturk or religions" must be dealt with by the Asliye Ceza criminal courts dealing lesser offences than those handled by the Heavy Criminal Courts. (1) State Security Court hearings under Article 162 of the Turkish Penal Code were held in February 2001, and resulted in acquittals. However, on 18 June 2001, the acquittals of all but one of the 16 accused were reversed. Trial restarted on 19 October 2001. The hearing on 29 September 2003 resulted with acquittal. (2) Uskudar Asliye Ceza court hearings started in February 2001 to hear charges under Article 159 of "insulting the quality of being a Turk, the Republic, Parliament, Government, Ministries, Jurisdiction or the forces of he government related to the military" opened in May 2001. Subsequently acquitted, although the trial was re-opened. Again acquitted on 28 July 2002. (3) Penal Court hearings opened in February 2001 to hear charges of insult to religions which carry up to 6 years in prison. The hearing on 29 September 2003 resulted with acquittal also in this case.
Key figures in the Fox 2000 case:
Yavuz ÖNEN: President of the Human Rights Foundation of Turkey
Cengiz BEKTAS: writer, and chair of the Turkish Writers' Union
Mehmet Atilla MARAS: writer, chair of the Turkish Writers' Association
Erdal ÖZ: writer
Etyen MAHÇUPYAN : writer
Sanar YURDATAPAN : composer, leader of FoX
FoX: For All: Booklet published in October 2000, of which 550 copies were presented to members of parliament. Contains statements by dissidents, political activists, human rights activists. Includes one by writer Esber Yagmurdereli. 77,663 people allegedly signed onto the pamphlet as co-publisher. Sixty-five MPs, activists, writers, artists, etc are being prosecuted as publishers of the book. Those relevant to PEN are:
Abdurrahman DILIPAK: journalist and writer
Ayse ÖNAL (f): journalist
Emine SENLIKOGLU (f): writer and journalist (also see below)
Meryem CANAN CEYLAN (f): writer and journalist
Mustafa ISLAMOGLU: writer and journalist
Sabiha ÜNLÜ (f): writer and journalist
Turgut BALABAN: journalist and cartoonist
Sanar YURDATAPAN: composer, leader of FoX
The trial hearings were still in process in 2003. However, the hearing on 29 September 2003 resulted with acquittal.
Freedom of Expression 2001: another pamphlet of "illegal" writings published on 23 January 2002 as a challenge to the judicial system that penalises freedom of expression. Articles by 11 people including Noam Chomsky but only two persons charged: Sanar Yurdatapan and Yilmaz Camlibel . Charges: 1) Article 162 of the Penal Code - distributing materials that count as an offence 2) Article 16/4 of the Press Law - where publishers, translators and writers of "offensive" articles are prosecuted. Two of the 11 are to be prosecuted: Sanar Yurdatapan and Yilmaz Çamlibel. First hearing held 7 October 2002 and still in progress. The hearing on 29 September 2003 resulted with acquittal.
D- Rejected applications
The case of Yurt Publishers:
Following the repeal of Article 8 of the Anti-Terror Law; Ismail Besikci, author of numerous books on Kurdish issues, and his publisher Unsal Ozturk of Yurt Publishers, applied to the State Security Court in Ankara on 30 July 2003 and filed a formal appeal for annulment of the court decision on the confiscation of 20 book titles which had been confiscated under Article 8.
However, the State Security Courts No.1 & No.2 in Ankara have rejected two separate applications in December 2003 and January 2004 almost entirely, lifting the confiscation order only for 5 of the titles (two of them in 2 volumes each) on the grounds that "contents of the confiscated books still carry the elements of crimes defined in Article 312/2 TPC and Article 7 Anti-Terror Law" as well as that "confiscations had already taken place and there was no need for further legal procedure". Subsequently, confiscation order was lifted on the following books:
Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum Ilkeleri Açisindan Ismail Besikçi Davasi IV- Yargitay'a Basvuru (Besikçi Trial from the Point of View of Scientific Method, Autonomy of the University and the Principles of Democratic Society IV- Appeal to the Court of Cassation), Kürt Toplumu Üzerine (On Kurdish Society, Türk Tarih Tezi, Günes Dil Teorisi ve Kürt Sorunu (Turkish Historical Thesis, Sun-Language Theory and Kurdish Question), Doğu Anadolu'nun Düzeni-Sosyo-Ekonomik ve Etnik Temeller: 1-2 (The Order of the Eastern Anatolia- Socio-economic and Ethnic Foundations: Vols. 1 & 2), Kürt Toplumu Üzerine, Cumhuriyet Halk Firkasi'nin Tüzüğü (1927) ve Kürt Sorunu (On Kurdish Society, Republican Party Statute (1927) and the Kurdish Question), Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum Ilkeleri Açisindan Besikçi Davasi I- Danistay Davalari, Iddianame Esas Hakkindaki Mütalaa (Scientific Method, Autonomy of the University and Trial of Besikci from the Point of View of the Principles of Democratic Society, Vol. I - The Supreme Court Cases, the Indictment and Summing up the Case ), and Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum Ilkeleri Açisindan Besikçi Davasi II- Savunma (Scientific Method, Autonomy of the University and Trial of Besikci from the Point of View of the Principles of Democratic Society, Vol. II- Defense).
Application for the annulment of the confiscation order was rejected on the following books, on the grounds that "Contents of the confiscated books still carry the elements of crimes defined in Article 312/2 TPC and Article 7 of the Anti-Terror Law" :
Bilincin Yükselisi (Rise of Consciousness), Bir Aydin Bir Örgüt ve Kürt Sorunu (An Intellectual, An Organization and the Kurdish Question), 12 Eylül Fasizmi ve PKK Direnisi (The September 12th Fascism and PKK Uprising). However, Süreyya Gönül, a member of the board of judges at the Ankara SSC, submitted his dissenting opinion against this court decision and stated that confiscation decisions should be annulled.
Application for the annulment of the confiscation order was rejected on the following books, on the grounds that "confiscations had already taken place and there was no need for further legal procedure":
Bilim Yöntemi (Method of Science), Koca Çinar - Kürt Bilgesi Musa Anter (The Great Plane Tree - Kurdish Wise Man Musa Anter; this book was written by Yasar Kaya, a Kurdish publisher in exile), Kürtlerin Mecburi Iskani (Forced Settlement of Kurds), Ortadogu'da Devlet Terörü (State Terror in the Middle East), Kürt Aydini Üzerine Düsünceler (Reflections on Kurdish Intellectuals), Zihnimizdeki Karakollarin Yikilmasi - Yargilama Süreçleri ve Özgürlesme (Destruction of Police Stations in Our Minds - Trial Processes and Liberation), Bilim-Resmi Ideoloji, Devlet-Demokrasi ve Kürt Sorunu (Science-Official Ideology, State- Democracy and Kurdish Question), Devletlerarasi Sömürge Kürdistan (Kurdistan: An International Colony), UNESCO'ya Mektup (Letter to UNESCO), Baskaldirinin Kosullari (Circumstances of Uprising), Tunceli Kanunu (1935) ve Dersim Jenosidi (Tunceli Law (1935) and Dersim Genocide), and Kürdistan Üzerine Emperyalist Bölüsüm Mücadelesi 1915-1925: I (Imperialist Struggle of Sharing Kurdistan, 1915-1925, Vol.I).
E - Ban on electronic media:
Ankara Penal Court of Peace No. 4 decided to ban access to and filter the "ozgurpolitika.org", the internet site of the newspaper Özgür Politika, and "ekmekveadalet.com", the internet site of the journal Ekmek ve Adalet, on the grounds of "insulting the army", in accordance with the Article 155 of Criminal Procedure Code (CMUK/TCPC).
However, the Article 155 of TCPC doesn't have any provision regarding the closure of a publication or prevention of an access to an internet site. Security directorates reportedly started to implement similar decisions issued by the courts in Ankara and Istanbul.
This list has been compiled from the 2003 reports by PEN International - Writers in Prison Committee (PEN-WIPC), The Publishers Association of Turkey (Turkiye Yayincilar Birligi), Human Rights Association of Turkey (Turkiye Insan Haklari Dernegi - IHD), Human Rights Foundation of Turkey (Turkiye Insan Haklari Vakfi - TIHV), and from the database of Mediterranean Resources Network (Mernet).
Appendix - II
Laws in the Turkish legal system relevant to this report:
(The original versions before the amendments made through the harmonisation laws)
Law No 3713 on Fighting the Terror (aka "Anti-Terror Law")
Article 8 - Propaganda against the indivisibility of the State - (Amended: 19954126.1)
Written or oral propaganda, along with meetings, demonstrations, and marches that have the goal of destroying the indivisible unity of the state with its territory and nation of the Republic of Turkey cannot be conducted. Those who conduct such activities shall be punished with imprisonment of between one and three years and a heavy fine. If this crime is conducted habitually, imprisonment cannot be converted into a monetary fine.
If the crime of propaganda as determined in the first paragraph is committed by means of periodicals as determined in the third article of the Press Law No. 5860, the owner will also be given a monetary fine of an amount of up to ninety percent of the past month's average sales even if the frequency of the periodical is less than a month. The responsible editor of the periodicals will be subject to one-half of the monetary fine given to the owner as well as imprisonment of between six months and two years.
If the crime of propaganda as determined in the first paragraph is committed by press works or other mass communication instruments outside of the written periodicals in the second paragraph, the responsible editor as well as the owners of the means of mass communication will face imprisonment of between six months and two years and a heavy fine. In addition, if the act is committed by means of radio or television, a broadcast prohibition of from one to fifteen days can be given to the said radio and television stations.
If carried out by means explained in the second paragraph or by methods of mass communication outlined in the third paragraph, the punishment determined in paragraph one will increase from one-third to one-half.
Article 159 of the Turkish Penal Code (Amended: 1961/235):
Those who publicly insult or ridicule Turkish national identity, the Republic, the Parliament, the Government, State Ministers, the military or security forces of the state, or the Judiciary will be punished with a penalty of no less than one year and no more than six years of maximum security imprisonment....
If insulting Turkish national identity is carried out in a foreign country by a Turk the punishment given will be increased from one-third to one-half.
Article 426 of the Turkish Penal Code:
Whoever exhibits obscene books, newspapers, pamphlets, magazines, documents, articles, advertisements, pictures, illustrations, photographs, movie films or other items; or who puts on stage or show these things in theatres, cinemas or other public places, or who knowingly distributes or sells or suffers them, or the photograph records of the same nature, to be distributed or sold, or who in order to make profit or to distribute or exhibit such items, draws, illustrates, carves, manufactures, prints, or reproduces such items, or records them on photograph records, or imports, exports or transports them form one locality to another in Turkey, or suffers the foregoing activities to be performed, or who performs any transaction respecting any of the foregoing objects, or performs any transaction to facilitate the trade thereof, or who, in any manner, makes publicly known the ways of procuring, directly or indirectly, these documents or items, shall be imprisoned for one month to two years and shall be sentenced to pay a heavy fine.
Article 427 of the Turkish Penal Code:
The provisions of foregoing article are applicable also to the writes of obscene books, articles, documents or advertisements and to those who have assumed administrative responsibility for newspapers or magazines containing such writings or pictures.
The documents and objects mentioned in the foregoing and in this article shall be confiscated and destroyed.
Article 428 of the Turkish Penal Code:
Whoever openly sings obscene songs, plays such pornographic records, or sells newspapers, pamphlets and other documents by way of pronouncing words which are against public decency or injurious to a person's or a group of persons' honour and dignity, shall be imprisoned for one to six months and shall be sentenced to pay a fine.
Article 312 Penal Code (Amended: 1981/2370):
One who openly praises an action considered criminal under the law or speaks positively about it or incites people to disobey the law shall be sentenced from six months to two years of imprisonment and to a heavy fine.
One who openly incites people to enmity and hatred by pointing to class, racial, religious, confessional, or regional differences will be punished by imprisonment of between one to three years and a heavy fine. If the incitement is done in such as way that could possibly be dangerous for public security, the punishment given to the perpetrator is increased from one-third to one-half. Penalties given to those who carry out crimes in the paragraphs written above by means outlined in the second paragraph of Article 311 will be increased accordingly.
Amendments made in the above articles following the 7th Harmonisation Law:
(From the EU enlargement progress report on Turkey: http://europa.eu.int/comm/enlargement/report_2003/pdf/rr_tk_final.pdf)
Article 8 of the Anti-Terror Law ("propaganda against the indivisible unity of the state") was repealed as part of the sixth reform package.
As part of the seventh reform package, the minimum sentence under Article 159 of the Penal Code ("insulting the state and state institutions and threats to the indivisible unity of the Turkish Republic") has been reduced from one year to six months. The amendment confirms the August 2002 revision to the Article, which exempted from punishment the expression of opinions intended only to criticise, and not intended to "insult" and "deride" these institutions.
The seventh package also narrowed the scope of Article 169 of the Penal Code ("aiding and abetting terrorist organisations") by removing the provision sanctioning "actions which facilitated the operation of terrorist organisations in any manner whatsoever". Furthermore, the seventh package strengthens last year's amendments to Article 7 of the Anti-Terror Law which introduced the notion of "propaganda in connection with the (terrorist) organisation in a way that encourages the use of terrorist methods", by replacing "terrorist methods" with "resorting to violence or other terrorist means".
Fines have been increased ten-fold, and the length of prison sentences - which were increased last year - remains at one to five years.
(From the Directorate General of Press, Publication and Information of the Turkish Prime Ministry: http://www.byegm.gov.tr/on-sayfa/uyum/AB-7paket-analiz.htm)
The amendment to Article 159 of the Turkish Penal Code reduces the minimum penalty for those who "openly insult and deride Turkishness, the Republic, the Grand National Assembly, the moral personality of the Government, the Ministries, the military or security forces of the State or the moral personality of the judiciary" from "one year" to "six months". The second amendment to the same article ensures that expressions of thought undertaken solely for the purpose criticism do not incur any penalties.
The amendments to Articles 426 and Article 427 of the Turkish Penal Code excludes scientific and artistic works and works of literary value from the scope of criminal offences related to published or unpublished work that are offensive to morality or by being of a nature that provokes and exploits sexual desires. The term "destroy" is deleted from the text of the article, ensuring that the destruction of these works is no longer to be undertaken as part of the sanctions imposed on offences of this kind.
In order to meet the criteria sought by the European Court of Human Rights in this area, the expression "(incitement to) violence" has been incorporated into the text of Article 7 of the Anti-Terrorism Act, which deals with aiding and abetting terrorist organizations. As such, propaganda that incites to terrorism and other forms of violence continues to be a criminal offence. (YE)
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(*) This report was written by Umit Ozturk and Sara Whyatt and launched on 7th April 2004 during the roundtables entitled "Civil and Political rights in Turkey: A general overview with a particular emphasis on Freedom of Expression, the Reform Packages and Implementation Problems" .
The roundtables were co-organised by the International Publishers Association (IPA) and International PEN on the occasion of the 60th Session on the United Nations Commission on Human Rights in Geneva, Switzerland.
Umit Ozturk is the Chief Executive Officer of the regional think-tank Mediterranean Resources Network (http://www.mernet.org).
Sara Whyatt is the Programme Director of the Writers in Prison Committee of the International PEN (http://www.internatpen.org).
1 1= 1,600,000 Turkish Lira/$1 = 1,300,000 Turkish Lira