TANER AKCAM V. TURKEY
by ORHAN KEMAL CENGİZ

Today's Zaman
Oct 25 2011
Turkey

This week I have been in Strasbourg, France attending meetings at
the Council of Europe on some specific issues related to democracy
and human rights in Turkey. On Monday I attended a lecture on the
situation of religious minorities in Turkey, held by Strasbourg
University. I tried to explain to the audience the importance for
Turkey of confronting the past, in order to become a better democracy.

Having talked about confrontation, it was interesting to read the
European Court of Human Rights' (ECtHR) evaluation of Article 301 of
Turkey's Criminal Code, on denigrating Turkishness, in the judgment it
delivered this Tuesday. I am talking about the case of Taner Akcam v.

Turkey, which resulted in a finding that Mr. Akcam's freedom of
expression was violated.

The story of Article 301 is a long one. Hrant Dink was killed after
being tried under this article by ultranationalists. The current
government has amended the article by reducing the possible sentence
and adding an additional clause requiring the prior permission of
the Ministry of Justice to prosecute under this article.

The ECtHR's Akcam decision demonstrates that these amendments are not
sufficient. After this judgment I think Turkey needs to abolish this
article altogether. Interestingly, Taner Akcam has not been punished
under this article, but he has been prosecuted a couple of times for
his articles about the Armenian taboo. Normally, the ECHR would have
rejected his application, saying that he had not been sentenced under
the law in question and therefore does not have victim status.

However, the court took his allegation of having been victimized
under this article seriously for various reasons. The ECHR's findings
about Mr. Akcam's "victim status" were as follows: "The tangible
fear of prosecution not only cast a shadow over the applicant's
professional activities, but also caused him considerable stress and
anxiety, and seriously constrained his activities. ... It was widely
believed that Hrant Dink had been targeted by extremists because
of the stigma attached to his criminal conviction for 'insulting
Turkishness.'... Even though the public prosecutor in charge of the
investigation issued a decision of non-prosecution, holding that
the applicant's views were protected under Article 10, this did
not necessarily mean that the applicant would be safe from further
investigations of that kind in the future... the court considers
that while the applicant was not prosecuted and convicted of the
offence under Article 301, the criminal complaints filed against
him by extremists for his views on the Armenian issue had turned
into a harassment campaign and obliged him to answer charges under
that provision."

The ECtHR dismissed the government's claim that the prerequisite of
the permission of Ministry of Justice prevents misapplication of the
article, saying: "In any event, the court considers that even though
the Ministry of Justice carries out a prior control in criminal
investigations under Article 301, and the provision has not been
applied in this particular type of case for a considerable time,
it may be applied again in such cases at any time in the future,
if for example there is a change of political will by the current
Government or change of policy by a newly formed Government."

The ECtHR also analyzed how this article is interpreted by the Court
of Cassation:

"Moreover, the court observes that the established case-law of the
Court of Cassation must also be taken into consideration... the
interpretation of Article 301, particularly the concepts of
'Turkishness' or the 'Turkish nation'... the Court of Cassation
sanctioned any opinion criticizing the official thesis on the Armenian
issue."

The following paragraph in which the ECtHR evaluates the relation
between 301 and Armenian question is also important: "In view of
the foregoing, the court concludes that the criminal investigation
commenced against the applicant and the standpoint of the Turkish
criminal courts on the Armenian issue in their application of Article
301 of the Criminal Code, as well as the public campaign against
the applicant in respect of the investigation, confirm that there
exists a considerable risk of prosecution faced by persons who express
'unfavorable' opinions on this matter, and indicates that the threat
hanging over the applicant is real. In these circumstances, the court
considers that there has been an interference with the exercise of
the applicant's right to freedom of expression under Article 10 of the
[European] Convention [on Human Rights]."

I really hope that this judgment will be read carefully by the Turkish
authorities and that we will be able to get rid of Article 301 as
soon as possible.