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The Turkish Penal Code (TCK) article entitled "Provoking the Public to Hatred, Hostility or Degrading" once again became a talking point after the arrest of the pop singer Gülşen.
What does this concept tell us? Can it be a reason for one's arrest? What are the conditions for being put on trial for this offense? Are there double standards in its implementation?
We talked about Çiğdem Akbulut, the chair of the Progressive Lawyers Association (ÇHD) İstanbul Branch.
About the arrests, which are the most striking consequences of this article, she said, "While arrests shouldn't be made according to the penal enforcement system because of the upper penalty limits, we mostly see arrests in practice. For sure, it is evident that this disproportionate measure is applied against the dissidents of the government in a way that violates this group's freedom of expressions and personal security."
Akbulut, who also made a legal evaluation of article 216, reminded the concept of "imminent and clear danger."
The action must be "intentional"
The "TCK 216" has been increasingly used as a reason for detentions and convictions recently. What conditions are actually (legally) required for a crime according to this article occur, and what actions constitute the elements of this crime?
The purpose of the all three types of crime defined in this article is to protect social peace." Arrangements intended to prevent a certain part of the people to another from harboring hatred, anger and hostility towards another and from taking action with these feelings...
When we look at the legal conditions, the statement subject of the allegation should be "intentional." In other words, in order to the element that we call "provocation" to exist, the statement must be made for the purpose of provoking a part of the people against another.
And the words spoken for this purpose must pose a clear, immediate and "real" danger against the people who are targeted. It is necessary to look at when the words were said, in what environment they were said, and to whom/to whom they were said. It has to be questioned whether it really caused an outrage.
"We will cut off their tongues"
Does the practice in Türkiye comply with these conditions? How do you evaluate the current practice and criticisms of double standards?
While arrests shouldn't be made for neither of the three types of crimes according to the penal enforcement system because of the upper penalty limits, we mostly see arrests in practice. For sure, it is evident that this disproportionate measure is applied against the dissidents of the government in a way that violates this group's freedom of expressions and personal security.
Last year, Boğaziçi students had been arrested pending trial for months for this crime because they put the photograph of Kaaba on the ground. However, July 15 Martyrs and Veterans Platform Chair Erol Bulut, who recently said, "We will cut off their tongues, fire bullets at their brains" about Sezen Aksu was prosecuted neither for TCK 216 nor any other offense and these words were deemed freedom of expression.
Almost every day, there is hate speech towards the LGBTI+ individuals in the country, and it's mostly state officials and clerics who say these words. But we have never seen investigating authorities taking action.
One of the most striking examples was the verdict of acquittal regarding Sedat Peker's words about the academics for peace that "We will make them bleed in streams." Moreover, we know that if this case was tried today, it would end in a different way. Also, it is an exact summary of the way the article's implementation.
We see that women, Kurds, Alevis, workers seeking their rights, students, and, lately, migrants are constantly targeted by the government and other fascist movements and their media, and as a consequence of these statements, we see lynchings and massacres, which go beyond the element "open and imminent threat."
While criminal investigations aren't initiated even in these situations, we find the TCK 216 as a stick against the opposition when the government's "values" are talked against.
TCK Article 216 - Provoking the Public to Hatred, Hostility or Degrading
(1) A person who publicly provokes hatred or hostility in one section of the public against another section which has a different characteristic based on social class, race, religion, sect or regional difference, which creates an explicit and imminent danger to public security shall be sentenced to a penalty of imprisonment for a term of one to three years.
(2) A person who publicly degrades a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a penalty of imprisonment for a term of six months to one year.
(3) A person who publicly degrades the religious values of a section of the public shall be sentenced to a penalty of imprisonment for a term of six months to one year, where the act is capable of disturbing public peace.
(AS/VK)
