Article 301 and the Honour of the Turkish Nation

​​A conflict is brewing within the Turkish government. The cause of the conflict is the controversial Article 301 of the Turkish penal code, which some public prosecutors and courts use to bring court cases against anyone who expresses uncomfortable opinions.

More than 60 intellectuals, journalists, publishers, and authors have been brought to court in the past two years charged with "denigrating Turkishness". Among them is Nobel prize-winning author Orhan Pamuk, who faced such charges for his public criticism of the way the country deals with the issue of the Armenian genocide in 1915.

Turkish civil rights activists and EU politicians have long been calling for the reform or abolition of the article, which was introduced in mid 2005. Ankara initially turned a deaf ear.

Now, however, the government feels that the time has come to take action and wants to fast-track the amendment. Last week, Justice Minister Mehmet Ali Sahin announced that the bill for the amendment of Article 301 is ready. But what's the hurry all of a sudden?

Sudden will to reform

The end of this week – 19 January to be exact – marks the first anniversary of the murder of the Turkish-Armenian journalist Hrant Dink.

Although the government would have liked the parliament to have passed the bill amending Article 301 by then in order to demonstrate to the EU that it is willing to make reforms, this is not going to happen. Prime Minister Erdogan had to admit that the reform of the Turkish penal code would once again have to be postponed.

​​This will not spare the government the uncomfortable questions that are bound to be asked on the anniversary of Dink's murder. After all, both President Gül and the government pledged to amend the Article after last year's elections.

Moreover, because Dink called for a historical reappraisal of the Armenian tragedy and promoted the preservation of Armenian culture in Turkey, he was sentenced under Article 301 and murdered by nationalists a short time later.

At the time, Prime Minister Erdogan said that "the bullets that killed Hrant Dink were an attack on democracy and press freedom," and pledged to do everything within his power to get to the bottom of the crime.

Debate on nationalism long overdue

Dink's murder sent shockwaves through Turkish politics. Whether it was the security forces, public prosecutors, police, military, or the secret services, certain people knew about the impending murder well in advance, but chose to keep a lid on it.

Numerous heads rolled and a long-overdue debate about nationalism ensued. During this debate, conservatives were forced to concede that Turkish nationalism had grown and intensified to such an extent that it was assuming damaging proportions.

It was as if Dink's assassination had become the greatest challenge faced by Turkish society; the reason being that the murder showed that nationalism was not only the result of Turkey's education policy, but was, more importantly, actually being kept alive by the state.

Covered tracks

Despite the fact that so many high-ranking people are involved in the murder and although according to the Dink report, clues have been destroyed or tampered with, documents and interviews are kept under lock and key, and evidence has disappeared, some progress has been made.

Earlier this month, Turkish forensic doctors confirmed that the assassin was 19 at the time of the murder and not 17 as originally declared. "If the criminal court accepts this finding, the assassin will have to get a life sentence," says Fetiye Cetin, lawyer for the Dink family.

Two weeks ago, the five members of the commission investigating the murder began its work. This commission was set up at the request of the deceased's widow, Rakel Dink, and intends to produce an independent report. Its members all sit on the parliament's human rights committee. According to Turkish media reports, the Dink family were able to give the commission important leads.

According to the annual report from the Dink Foundation, however, the case is so complex that even legal experts will need a detailed diagram to understand who was involved in what way and to what extent.

The report points out that all the information, video recordings, evidence, and documents collected both before and after the murder at the scene of the crime in Istanbul and in Trabzon mysteriously disappeared when they reached the premises of the secret service in Ankara.

Protecting the nation's honour with the criminal code

The report goes on to say that "the murder, for which plans were being laid since 2004, could have been cleared up long ago." Cetin pointedly asks: "Who are the security forces and secret service protecting anyway? Are they protecting the citizens against all threats? Or is it not more accurate to say that Article 301 is protecting the authoritarian state against the demands of its citizens?"

The proposed amendment does include some improvements such as the replacement of the term "Turkisness" (sometimes also translated into English as "Turkish identity") with "the Turkish People" and the reduction of the sentence for denigration of Turkishness to two years.

Christian Rumpf, an expert in Turkish law, is of the opinion that the replacement of the ambiguous term "Turkisness" – which opened the door to all kinds of emotive judgements on the part of Turkish judges – with a more easily definable term will make it more difficult to sentence under Article 301 people who claim that what happened to the Armenians in 1915 was genocide.

One thing is certain: as far as getting to the bottom of the Dink murder is concerned, there is still a long, long way to go. Moreover, the fact that Turkey's pride is so important to Turkish citizens that the honour of the country has to be protected by criminal law is illustrated by Article 301, which gives free reign to all kinds of emotions.

Semiran Kaya

© Qantara.de 2008

Translated from the German by Aingeal Flanagan

Qantara.de

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In January, the Armenian journalist Hrant Dink was shot by a nationalist in Turkey, but the people behind the murder have still not been caught. In Berlin, Henriette Wrege met Hrant Dink's lawyer, Fethiye Cetin

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