Statement of Academic Baki Tezcan

Click to read the statement in Turkish

We are publishing the statement of academic Assoc. Prof. Baki Tezcan from the University of California, UC Davis History Department, who has been charged with "propagandizing for a terrorist organization" for having signed the declaration entitled "We will not be a party to this crime" prepared by the Academics for Peace. Tezcan presented the below statement in his hearing at the İstanbul 27th Heavy Penal Court on July 18, 2019.

(Click here to read statements of Academics for Peace published in English)

***

Dear President and the members of the committee,

Let me express at the very beginning of my defense that I reject the charge of terrorism propaganda that has been attributed to me and demand my acquittal. Since, as a human being who is against all types of violence, I would not engage in something like propaganda for terrorism even under duress, it is impossible that I would do such a thing intentionally. As was conveyed to the Istanbul Directorate of Security in May 2016 by my lawyer, Mr. Süleyman Anıl, I signed the text that carries the signatures of 2,218 academics "within the scope of freedom of thought and expression, which is guaranteed under the Constitution of the Turkish Republic, the European Convention on Human Rights, and other international texts, without the inculcation or inducement of any person or institution, with the aim that the right to live in peace may be established in our country." In my written defense that you are reading, I will demonstrate that this text does not constitute a crime. But first I would like to underline three errors of fact in the indictment, and to indicate how weak the main argument that the indictment is built upon is and what kind of an assumption it is based on.

First, the indictment, which is prepared by a prosecutor who, according to the press, was "first transferred to a different office and then removed from active duty," attributes to me things I have not uttered. [1] According to the indictment, on May 18, 2016, I am supposed to have made a statement that includes the following: "I am not accepting all accusations. [2] I will not answer the questions one by one. I will answer all the questions once." I do not have such a statement. There are no such sentences in the statement submitted to the police by my lawyer on my behalf. The prosecutor must have cut a section of an indictment he prepared and pasted it in mine.

Second, the atrocious terror act of Ceylanpınar, which is referred to in the indictment, remains, regrettably, as an unsolved case because all suspects have been acquitted and the objection of the prosecutor of the case resulted in the confirmation of the verdicts of acquittal at the court of appeal. [3] In short, the perpetrator of the event, which brought the peace process to an end, is, unfortunately, still unknown.

Third, the Turkish translation of the English version of the Peace Petition that is included in the indictment is wrong. "Kurdish provinces" could be translated into Turkish as "Kurdish provinces (Kürt illeri)," but it cannot be translated, as the "provinces of Kurdistan (Kürdistan illeri)" as has been done in the indictment. [4]

After underlining these three errors of fact, I would like to focus on the claim that is the central pillar of the indictment. I saw the name of Bese Hozat for the first time in my life in this indictment. Similarly, I read the fact that this person made a statement on December 22, 2015, demanding that "intellectual and democratic circles should support self-government" for the first time in this indictment. The indictment is based upon the claim that I and the more than 2,200 academics who signed the Peace Petition follow the media outlets in which this statement was published, that we read this statement, and that, taking this statement as an instruction, we prepared and signed the declaration that starts with the phrase "We will not be a party to this crime!" Yet, the prosecution does not provide a single piece of evidence or witness that could constitute a foundation for this claim. I do not know whether there could be yet another high criminal case the indictment of which does not include a single piece of evidence or witness in legal history. But I would like to think for a moment how the prosecutor could keep himself exempt from onus probandi, or the burden of proof.

Apparently, the prosecution assumes that academics in Turkey would not care about the conditions under which ordinary people live in the majority-Kurdish provinces, and that, if there are some who do care, they must be sympathizers of an illegal armed organization that appeal to tactics of terror. More importantly, I believe that the prosecutor not only assumes that the signatory academics are sympathizers of an illegal armed organization that uses a tactic like terror, which academics would not even come close to the vicinity of, but he at the same time also assumes that the signatory academics are deprived of an independent will. This assumption is apparent as the prosecutor supposes that the signatory academics would follow the instructions, which, he assumes, they received indirectly from people whom, he assumes, they sympathize with, word for word.

I chose to pursue an academic career, which is based on independent research, because it is a profession that I could practice without receiving instructions from anyone. I am under no obligation –other than teaching four classes and serving in some university committees– to account for the subjects I do research in, or for what I write on these subjects at the university where I work. The only thing that is expected from me as to how to interpret early modern Ottoman history, which is my area of research, is to lay hands on topics that have not been studied and to say things that have not been said before me by approaching critically that which has been said before me. Looking at the past anew and being able to find there something that has not been seen before requires freedom of thought and creativity. One cannot become creative with instructions. It is precisely because of this that those who are persecuted in the cases of the Academics for Peace are among the most successful academics of Turkey. It is because we are keen on our freedom and do not receive instructions that our writings are read and acknowledged worldwide.

Now I would like to focus on the question of whether or not this declaration I came across online, and also signed online, really contains an element of crime. To begin with, let me remind you that the text speaks about peace, not terror. A quotation from the defense of Mustafa Gazalcı, who was persecuted in the Trial of Peace in the aftermath of September 12 is very appropriate here: [5]

• ... The prosecution is not seeking an article of the penal law for a crime the elements of which have come into existence; it is trying to MOLD US INTO A SHAPE THAT WOULD FIT the available article of the penal law. Naturally this does not work, it remains in the air.
• And sometimes the prosecution interprets words differently from their real meaning. He says "don't look at what they say, they actually mean this."
• During the reign of Abdülhamid, it was forbidden to use certain words: people who use such words as "star," "nose," and "freedom" would be punished for meaning something else. [6] But there is no record, no prohibition in the laws of the Turkish Republic stating, either, that the word 'peace' or another one shall not be used, or that when it is used it will mean something else.

Yes, Mr. President and the members of the committee, the text we signed is also quite clear. It says: "We demand [the government] to ... create a road map that would lead to a lasting peace..." I have not come across a dictionary that explains the meaning of peace with terror. Peace is the antonym of both war and terror.

The indictment, which has been prepared using the same tactics that had been used during periods of military rule, not only attributes to us the exact opposite of our intention, it also misrepresents international law by turning it upside down. Talking about decisions of the European Court of Human Rights (ECHR) to none of which he provides a reference, the prosecutor states that the ECHR "accepts that statements, which incite people to hatred and enmity or violence and rebellion based on religious, linguistic, and racist discrimination may be limited for reasons of national security, public order, and territorial integrity." Even though the Declaration for Peace [or the Peace Petition] does not include any such statements, while I was preparing my defense I identified the source of this phrase in the indictment by using an internet search engine, as I was wondering which ECHR decision the prosecutor might be talking about. I believe the prosecutor used an M.A. thesis that was submitted to Ankara University's Institute for Social Sciences in 2006 because one reads on the 75. page of Kutlay Telli's thesis entitled "Freedom of Expression and Turkey in the Decisions of the European Court of Human Rights":

• The Office of International Review [referring to ECHR] especially accepts that statements, which incite people to hatred and enmity or violence and rebellion based on religious, linguistic, and racist discrimination may be limited for reasons of national security, public order, and territorial integrity.

Admitted! But for some reason the prosecution did not include the next sentence of Kutlay Telli in the indictment. See how Kutlay Telli continues:

• Limitation of speech despite the fact that there is no real threat with regard to the enumerated elements, however, results in the use of penal law as a tool of oppression that would prevent the people from being informed of different views.

At the end of this important sentence of warning, which the prosecutor for some reason did not take into account, there is a footnote. This footnote refers to an ECHR decision: the decision given in the case of Şener vs. Turkey, dated July 18, 2000. It is possible to access the [Turkish] translation of the decision by our Ministry of Foreign Affairs on the internet. Let's see what we learn when we read this translation.

Apparently, Pelin Şener, who gave her name to the case, used to be the owner and editor of a certain weekly called Haberde Yorumda Gerçek [The Truth in News and Comment] that was published in Istanbul. An article entitled "Aydın İtirafı" [The Confession of the Intellectual] was published in the 23. issue of the weekly on September 4, 1993. The first sentence of the article reads "We are watching the wholesale extermination of a nation. We are watching a genocide on such a scale that it is not a mistake to call it unprecedented." I should not extend my defense by copying all of the article here. Citing the Counter Terrorism Law, Pelin Şener was apparently accused of [and sentenced for] making divisive propaganda for publishing this article. When Şener's application to the European Commission of Human Rights reached the court, our government [the quotation below is from the website of the ECHR]: [7]

• highlighted certain extracts from the article and contended that the phrase, "we forget the axiom that the only way to oppose a war is to wage a just war" was a clear incitement and encouragement to violence...
• In the Government's opinion, the message which the article conveyed was that the only means for resolving the Kurdish problem was the maintenance of terrorist activities against the State, and that intellectuals should give the necessary support to such activities. The Government argued that, in the context of a virulent terrorism campaign, the applicant should have refrained from disseminating propaganda aimed at supporting terrorist violence. They further submitted that the applicant had rightly been convicted under section 8 of the 1991 Act and that the measures taken against her properly fell within the authorities' margin of appreciation in this area."

Let's see how the court replied to our government:

• the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion.

According to the court, the article that is the subject of the case

• contained a sharp criticism of the Government's policy and of the action of their security forces with regard to the population of Kurdish origin... the author criticised their overall view of the Kurdish problem. The author further suggested that the Kurdish reality should be recognised and peaceful methods tried in order to resolve the Kurdish problem instead of having recourse to military action...
• The Court notes in addition that, although certain phrases seem aggressive in tone, such as the one highlighted by the Government, the article taken as a whole does not glorify violence. Nor does it incite people to hatred, revenge, recrimination or armed resistance. On the contrary, the article is an intellectual analysis of the Kurdish problem which calls for an end to the armed conflict.

At the end, in the case of Pelin Şener the court decided that the 10th article of the European Convention of Human Rights was violated [by Turkey]. In short, the decision that is the reference for the sentence, which follows the sentence that the prosecutor included in the indictment in the source where that sentence is found, actually proved the exact opposite of the claim of the prosecutor – in a case that is similar to ours no less.

While the Declaration for Peace [or the Peace Petition] includes some sentences that have been written in a stern tone—though not as stern as the ones in the article that is the subject of the above mentioned Şener vs. Turkey case—it does not "incite people to hatred, revenge, recrimination or armed resistance." To the contrary, the Declaration for Peace suggests that "peaceful methods [should be] tried in order to resolve the Kurdish problem instead of having recourse to military action."

We can find many more examples like this one if we were to look at the decisions that the ECHR took regarding Turkey. But I do not want to take the time of the court committee with unnecessary repetitions. I would just like to state that, contrary to the claim of the prosecutor, the ECHR evaluated statements, which suggest that the state perpetrated a "massacre" or which define a conflict as "war," within the limits of freedom of speech. If you like, you could look at the decision of the ECHR in the Karkın vs. Turkey case (43928/98), dated September 23, 2003. Moreover, the fact that the state could perpetrate a massacre was expressed by our President Erdoğan himself in his speech about Dersim on November 23, 2011. [8]

As citizens of the Republic of Turkey, fortunately, we do not always have to go to the ECHR in order to be freed of the arbitrary limitations imposed on our freedom of speech. The detailed ruling of the Constitutional Court with regard to the application of Ayşe Çelik, who is better known as "Ayşe the Teacher" in Turkish public opinion, also debunks the claims of the prosecutor. In the evening of January 8, 2016, that is, three days before the public announcement of the Declaration of Peace on January 11, 2016, Ayşe Çelik called into the Beyaz Show and stated on live TV: [9]

Are you aware of what is happening in Turkey's east and southeast? Unborn children, women, people are being killed here. As an artist, as a person you must not remain silent about what is happening, you must call for this to stop. I also want to say something about those who are pleased to see children dying. There is nothing I, we, can say to those people except shame on you. One more thing, please forgive me. I am a teacher, and I want to address those teachers who abandoned their students. How will they return and face those beautiful, innocent children and look into their eyes? I can't speak, what really is happening here and what is shown on your screens and in the media...Things are being conveyed very differently, I really can't speak, please do not remain silent, be more sensitive as people, see what is happening, hear our voices, lend us your hands. It's a pity -- people shouldn't be dying, children shouldn't die, mothers shouldn't cry, this is what I have to say. Thank you very much.

There is so much I want to say. But I am overwhelmed by emotions that prevent me from speaking.

You notice it too, my voice is trembling.

The sounds of bombs, the sounds of bullets, people are struggling with hunger and thirst. Especially the babies, the children. Please show some feeling, don't be silent, I am begging you, please.

Ayşe Çelik's words offer an excellent summary of the report "Turkey: Mounting Security Operation Deaths" published by Human Rights Watch on December 22, 2015, don't they? If you are wondering why I signed the Declaration for Peace, I would recommend that you look at that report and that you listen to the things Ayşe Çelik said one more time.

The best explanation of why the Declaration for Peace should be evaluated within the scope of freedom of speech is the answer provided by the Constitutional Court to the application of Ayşe Çelik. In its detailed ruling which was published in the Official Gazette dated May 10, 2019, the Constitutional Court stated thus:

• The most important elements to examine in talks that are similar to the event that is the subject of the application is whether the speech included hatred and enmity. Statements that address the social and individual problems associated with the government's legitimate struggle against a terrorist organization—even when the statements are entirely subjective—cannot by themselves be considered as expressions of thought that make it possible to inform or incite those prepared to commit acts of terror, that increase the risk of committing these crimes.
• The Constitutional Court considers that the petitioner's words should not be interpreted as praise for PKK terrorism, support for terrorism, or direct or indirect incitement to violence, armed struggle or rebellion. In the concrete context in which the petitioner spoke, we find no evidence that she lauded the members of the organization who were fighting against the security forces in trench warfare, praised the terrorist organization, inculcated hatred against the members of the security force involved in the fighting directly or incited anyone to violence.

In short, the Constitutional Court evaluated the articulation of a statement, which underlined the gravity of the impact of the intensity of the conflict on the local population and demanded peace, in a widely watched TV show to be within the scope of freedom of speech.

As is known, the General Assembly of the Constitutional Court will tackle the Declaration for Peace in the coming months. The Court most certainly will take into account its own decision in the case of Ayşe the Teacher and the decisions of the ECHR in similar situations, such as the decision of the ECHR in the case of Dmitriyevskiy vs. Russia. [10] In 2004, Dmitriyevskiy included in two successive issues of a journal that he published the statements of two famous Chechen leaders who fought Russia with some success. The first article stated that as long as the current

Government remained in the Kremlin "blood will continue to flow in Chechnya and in Russia"; the second argued that the Kremlin was "the centre of international terrorism." The second article also claimed that Russia was committing a genocide in Chechnya, referred to the "criminal madness by the bloody Kremlin regime," and stated that Russia was engaged in "unmotivated mass murders." Russian courts found Dmitriyevskiy guilty of inciting hatred and enmity among the people for these publications. The ECHR accepted that at the time of the publication fighting in Chechnya was a sensitive topic and that the Russia government was under an obligation to take measures to protect national security, territorial integrity and public safety. Despite this, the ECHR found that these publications—written in much harsher language than the Declaration for Peace—did not constitute incitement to violence and ordered Russia to pay Dmitriyevskiy 10,000 Euros in damages and to cover Dmitriyevskiy's court-related costs.

In sum, when compared to the examples given above of decisions and texts that were deemed protected forms of free speech by the ECHR, the Declaration for Peace is in words and tone far less harsh and contains nothing that would constitute a crime whether under domestic or international law.

Before ending my statement, I would like to underscore one additional point. The indictment accuses signatories of working to influence international public opinion against Turkey. Upon careful examination of the international press coverage, one can see that what keeps the Declaration for Peace in the news is not the declaration but the reaction to it in Turkey. Most of the articles report on signatories who were purged from their positions or who are being tried. For example, the local newspaper where I work in California reported on the Declaration for the first time, three and a half years after it was originally signed, in the context of an article reporting on my having been detained in front of my wife and children when I disembarked from the plane. In other words, the Declaration has now been publicized in California's capital of Sacramento not because of my signature but due to the arrest warrant issued by this court, which was not lifted even after my lawyer submitted a copy of the airplane ticket that I purchased in order to return to the country to be present for today's hearing.

Mr. President and members of the committee, in 2008 Ms. Bülent Ersoy, with the creativity of an artist and enormous courage, before any peace process had begun and in the midst of a military operation, took a stance on the side of a resolution to the conflict rather than continuing deaths. I hereby reiterate that, by signing the Declaration for Peace, I did not intend anything else than demanding a "solution instead of death" and request that all charges against me be dropped.

Thank you for reading this text and I hope your summer judicial recess goes as your heart desires. (BT/SD)

* This translation has been provided by Baki Tezcan.

 [1] Mr. İsmet Bozkurt, the prosecutor who prepapred this indictment, has been removed from active duty in March 2019, after he was transferred to a different position earlier. The Turkish daily Cumhuriyet reported that his conversations with suspects were caught on tape, suggesting that he was bargaining with suspects to issue a verdict of non-prosecution.

[2]The awkwardness of the statement is in the original: "Tüm suçlamaları kabul etmiyorum."

[3]On July 22, 2015, two police officers were murdered in the home they shared. These murders are often cited as the event that brought the peace process between the Turkish government and PKK to an end. The indictment attributes the responsibility for these murders to PKK; see the news report by bianet.

[4]The use of the geographical designation Kurdistan with reference to the southeastern region of Turkey remains to be controversial; see https://bianet.org/english/freedom-of-expression/210526-who-can-and-cannot-say-kurdistan-in-turkey-a-guide.

[5] Mustafa Gazalcı (b. 1945) is an educator and served as a member of parliament for two terms. He was persecuted in the aftermath of the 1980 military coup in Turkey as one of the members of the Association for Peace. The following quotation is from his book, Barış Zinciri: Türkiye Barış Derneği Davası. The court case ended with the acquittal of all the defendants in 1991.

[6] "Star (yıldız)" could refer to the palace where Abdulhamid II (r. 1876-1909) resided, the Yıldız Palace. And the "nose" could refer to the sultan's distinctive hooked nose. "Freedom" was something a lot of people sought during his reign that was marked by autocratic rule after he dismissed the First Ottoman Parliament in 1878.

[7] The original text of the defense (in Turkish) refers to the Turkish translation by the Ministry of Foreign Affairs.

[8] In this speech, Mr. Erdoğan apologized for what happened to the Kurdish people of Dersim in 1937-38 when Turkey was ruled under the single party regime of the Republican People's Party, which is the main opposition party in Turkey today.

[9] For a news report that summarizes the case of Ayşe Çelik, see https://bianet.org/english/print/208365-teacher-ayse-celik-released-from-prison-upon-constitutional-court-verdict-of-right-violation. The following excerpt is from the transcription of her remarks that are found in the detailed ruling of the Constitutional Court.

[10] The following is from the press release of the court; for the full text of the decision, see http://www.cir-onlus.org/wp-content/uploads/2017/12/CASE-OF-DMITRIYEVSKIY-v.-RUSSIA.pdf

[11] For the coverage of Ms. Ersoy's remarks and the legal case that followed, see http://m.bianet.org/bianet/gender/112482-prosecutor-denies-transsexual-singer-right-of-free-speech. In one of her interviews with the press during the court proceedings, she remarked that she wants "solution instead of death," see http://bianet.org/bianet/bianet/109904-bulent-ersoy-mahkemedeydi-olum-degil-cozum-icin-konustum (in Turkish).