Fundamental Reform or Window Dressing?

The recent change to the law on "insulting Turkishness" is supposed to indicate to the EU that democratization is progressing in Turkey. But does the reform really offer new hope for pluralism and freedom of expression? Günther Seufert reports from Istanbul

How guarded the European Union has become toward Turkey! This is the impression gained by anyone who notes the initial European reactions to the long overdue changes in the notorious Article 301 of Turkey's penal code.

The European Commission expressed its "satisfaction," the Council presidency believes "a constructive step" has been taken, and in Berlin, Foreign Ministry spokesman Andreas Peschke sees the reform as a "strengthening of civil rights" in Turkey.

From "Turkishness" to the "Turkish Nation"

Since last Wednesday morning it is no longer "insulting Turkishness" that is punishable but "insulting the Turkish nation," yet there is no indication that the courts, which have been so zealous in prosecution thus far, will be more moderate now. It is encouraging that "free speech criminals" can only be sentenced to two years instead of three years, as in the past, and that the sentence can now be suspended.

The fact the permission of the justice minister is now required to open new proceedings under Article 301 is being touted as the greatest improvement.

Is that enough to make the EU optimistic? At the moment, 527 cases are still being tried on the basis of Article 301, and thus far 745 people have already been sentenced under the "gag law" – including literature Nobel Prize winner Orhan Pamuk, who was taken to court but promptly left his country. The Armenian journalist Hrant Dink was also portrayed as an enemy of the Turks on the basis of Article 301 and was later murdered treacherously.

More freedom of expression in Turkey?

Such high-profile cases can now be stopped easily by means of the new regulation, provided that the justice minister prevents indictment. This will not help the hundreds of non-prominent victims of the penal code provision in urban centers, distant Anatolia, and regions populated by a Kurdish majority, however.

Logic alone dictates that "permission of the justice minister" means that charges under Article 301 will be prevented in one case and allowed in the next. That may have something to do with clemency but has no relation to legal certainty and more freedom of expression.

Orhan Pamuk said that a million Armenians and 30,000 Kurds met violent deaths in Turkey and was indicted as a result. If he did in fact insult something, did he actually insult only "Turkishness" with this sentence or the "Turkish nation" as well? It probably depends on the interpretation – either neither of the two, or both of them.

What will become of Ragıp Zarakolu, owner of the Belge Publishing House in Istanbul, who published The Truth Will Set Us Free, a book on the Armenian question by the English author George Jerjian, and is on trial for it under Article 301? Did he insult "Turkishness" or the "Turkish nation"?

In common usage they are one and the same, which is why, according to the constitution, the members of this nation are only allowed to learn Turkish as their mother tongue. By the same token, among all the charges brought under Article 301, not a single one concerns the denigration of particular religious or ethnic groups in this nation, such as Christians or Kurds.

Democracy without democrats

Parliament was in session until almost daybreak to achieve this small increase in the freedom of expression. The opposition did everything in its power to prevent the mini-reform.

The mitigation of the sentence is a thorn in the flesh for the Republican People's Party (CHP), and the right-wing extremist Nationalist Movement Party (MHP) is concerned about the "values of Turkishness," which are now supposedly completely without protection. The heads of both parties denounced the revision as "treason" and exerted intense pressure on the Erdogan government.

Turkish civil society also advocates only minor reforms. Trade associations are worried about Turkey's image and have long called for reform of the notorious provision, but they do not want to see it completely eliminated.

The same is true of many unions, and even the Turkish Bars Association echoes these views. "The balance between freedom of expression and the sacred values of our nation must always be maintained," explained its chairman, Özdemir Özok.

Opposition within the AKP

Furthermore, even in Prime Minister Recep Tayyip Erdogan's Justice and Development Party (AKP), there are influential politicians who favor Article 301 and similar penal provisions and have thus far successfully opposed the abolition of the law muzzling freedom of expression.

One of them is government spokesman Cemil Çiçek, who, in 2006, as Turkey's justice minister, encouraged public prosecutors to bring numerous indictments in cases involving "crimes of expression," even after international protests against the Pamuk trial. His circular from that time is still in force.

Only a handful of intellectuals and the pro-Kurdish Democratic Society Party (DTP) have for years vehemently demanded that Article 301 be abolished. The new provision alters nothing about the specifically Turkish taboos, e.g., the Kurdish and Armenian issues.

It provides no legal certainty, blurs the jurisdiction of judges and the government, and is of little help to those currently charged. After all, there is still not a majority in parliament in favor of legal certainty and breaking down taboos.

Günther Seufert

Translated from the German by Phyllis Anderson

Qantara.de

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