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International organisations call on government to repeal laws that penalise free expression

(WiPC/IFEX) - The following is a 24 November 2006 joint statement by ARTICLE 19, International PEN and IPA:

Geneva, London 24 November 2006

In recent days, the European Commission has demanded that Turkey meet commitments it has made, including the opening of its airports and ports to Cypriot traffic, and to improve human rights, including the right to freedom of expression - specifically by amending or repealing Article 301, under which numerous writers, journalists and publishers have been brought to court since it was promulgated in June 2005. The European Commission demands that these changes be made before the next European Council summit that will be held on 15 December. However, they will need to have been put in place by the Turkish authorities in the first week of December to enable the Commission to prepare its report on Turkey's accession to the Council.

In light of these developments, the International Publishers Association (IPA), International PEN and ARTICLE 19 are calling on the Turkish authorities not only to amend, but to repeal Article 301 of the Turkish Penal Code and all other legislation that penalises the exercising of the right to freedom of expression in a country where dozens of writers, publishers and journalists continue to be prosecuted for what they write and publish.

The three organizations,

- observing that Article 301 of the new Turkish Penal Code is used to suppress the right to freedom of expression, as spelled out in the UN International Covenant Civil and Political Rights (ICCPR), and the European Convention on Human Rights (ECHR), to which Turkey is a party
- considering that defamation and/or insult laws cannot be justified if their purpose or effect is to protect the "reputations" of entities other than those which have the right to sue and to be sued
- supporting the ECHR case-law, according to which defamation laws cannot be justified if their effect or purpose is to prevent legitimate criticism of officials or the exposure of official wrongdoing or corruption

urge the Turkish authorities to:

1. Abolish Article 301 of the Penal Code entirely;

2. Remove once and for all any articles that can be used to suppress the rights as enshrined under Article 19 of the ICCPR and Article 10 of the ECHR.

This resolution was adopted by ARTICLE 19, International PEN and the International Publishers Association (IPA) on 24 November 2006.

A copy of the letter follows.

Prime Minister Recep Tayyip Erdogan
Office of the Prime Minister
Basbakanlik
06573 Ankara
Turkey
Fax: +90 312 417 0476

Re: The necessary abolition of Article 301 TPC

Geneva, London, 24 November 2006

Dear Prime Minister,

ARTICLE 19, International PEN and the International Publishers Association (IPA) are writing to you with regard to Article 301 of Turkish Penal Code and in particular to express our concerns about its impact on the right to freedom of expression and, consequently, its consistency with international law. Article 301, on the denigration of Turkishness, the Republic, and the foundation and institutions of the State, was introduced with the legislative reforms of 1 June 2005 and replaced Article 159 of the old penal code.

The right to freedom of expression is guaranteed in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), treaties to which Turkey is a party. Consequently, the Turkish government has a legal obligation to respect this right.

Restrictions on freedom of expression are permitted, but they must meet three conditions: first, they must be provided by law; second, they must pursue a legitimate aim; and third, they must be "necessary in a democratic society" for the achievement of that aim.(1) The first condition means not just that restrictions must be written down in a piece of legislation, but also that the law in question must be accessible and formulated with precision sufficient to enable citizens to regulate their conduct.(2) The third condition means that there must be a "pressing social need" for a limitation.(3) The reasons given by the State to justify the limitation must be "relevant and sufficient"; the State should use the least restrictive means available and the limitation must be proportionate to the aim pursued.(4)

The term "Turkishness" is vague and gives opportunity for the arbitrary criminalisation of criticism. It does not meet the standard of clarity required by the first part of the three-part test above. Moreover, it is inherently illegitimate for the State to impose a blanket ban on discussion of historical matters, or individuals and institutions. Such laws are both unnecessary - since generic hate speech laws already prohibit incitement to hatred - and open to abuse to stifle legitimate historical debate and research. As such, Article 301 also fails the third part of the test - it is not necessary in a democratic society. Although the last paragraph of the Article states that "criticism shall not be considered a crime", the distinction between criticism and denigration is problematic and experience shows that Article 301 is used to prosecute individuals who express opinions which diverge from official dogma regarding the history of the country, as well as certain "iconic" individuals and institutions.

We also recall that, according to the jurisprudence of the European Court of Human Rights, the limits of acceptable criticism are broader as regards politicians than private individuals (5) and the authorities of a democratic state must accept criticism even if provocative or insulting.(6) Furthermore, Recommendation 1589 (2003)1 of the Parliamentary Assembly of the Council of Europe urges states inter alia to "abolish legislation that makes journalistic freedom of expression subject to criminal prosecution"; "to stop immediately all forms of legal and economic harassment of dissenting media" and "to incorporate the case-law of the European Court of Human Rights in the field of freedom of expression into their domestic legislation and ensure the relevant training of judges".

In conclusion, we believe Article 301 of the Penal Code cannot be reconciled with Turkey's obligations under international law, and should consequently be abolished. Our common stance vis-à-vis Article 301 is further explained in our joint resolution (above).

Agnès Callamard
Executive Director
ARTICLE 19

Ana Maria Cabanellas
President
International Publishers Association (IPA)

Jiri Grusa
President
International PEN

PEN International

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