Reform the Penal Code for Human Rights / Group 4 – Analyzing of The Articles of The Penal Code

First Opinion
In order that a restriction of freedom is legitimate it must be based on jurisdiction. Jurisdiction means that restrictions have to be defined in law and that these laws have to be clear, understandable and accessible.
Understandable does not just mean that the text is available on demand. The laws have to carry clear and definite provisions. In that sense the term “any kind of sign that is used as symbol for sovereignty” that nobody (may not even the persons that prepared the text) has a notion of is certainly not understandable.
It should also not be forgotten that in the past trial were initiated against people who during a TV program cracked balloons with the Turkish flag on it or an artist who wore clothes with the Turkish flag. The vague formulation of the provision can lead to different evaluation of persons with different sensitivities. This is an indication that the provision is not clear and understandable.
In the same way the formulation of publicly insulting the National Anthem is vague. It could be counted as an offence, of the national anthem was not remembered well, the singing had been insufficient in literal and musical sense could also be understood to be part of this provision.
It should not be forgotten that the freedom of expression does not only apply for “ideas that are good, pleasing and acceptable for society” but also to “ideas that are shocking, disturbing and abhorrent for society”.
Because of these reasons the formulation of “in other ways” should be skipped and paragraph should be omitted. It was suggested to have a rewording of the provision in the following way:
Article 300
Insulting the symbols of State sovereignty
ARTICLE 300 – (1) A person who tears, burns and publicly humiliates the Turkish flag shall be sentenced to imprisonment of one to three years. 
(2) If the crime defined in the present paragraph is committed by a Turkish citizen in a foreign country, the penalty shall be increased by one-third.

Second Opinion
Because of the reasons expressed as the first opinion and for additional reasons listed below the provision should be cancelled completely.
It is possible that the provision will be applied under nationalist reflexes. “In other ways” is a broad definition open to interpretation. It is a threat to the freedom of expression and leaves room for subjective punishment. In addition, the imposed sentences are very high.
Even if the national anthem carries a special meaning as the anthem of the nation in essence it is a piece of music. A poet wrote the lyrics and a composer made the music. It cannot be accepted that a piece of music should be protected with the threat of punishment. There should be no reason for punishment, of a piece of music is criticized.
Likewise, it is unsuitable to count the fact that the offence was committed abroad an aggravating factor. This reflects a feudal and inward orientated approach.
The subject of the flag is dealt with in Law No. 2893 on the Turkish Flag. Article 7 of this law defines the offences against the flag in a way that meets the social need. It is possible to make an additional penal provision to the Law on the Flag by considering proportionality. However, there is no need for a provision on the national anthem and further aggravating reasons.

Third Opinion
Considering that a State has shown its existence with “symbols of sovereignty” and in law a provision exists that aims at preventing humiliation of symbols of sovereignty of other States it will be seen that the complete abolition of the provision does not make sense. Yet, some changes to the provision are needed.
First of all, it has to be made clear what the flag means. This has been done in the Law on the Flag. In that sense the formulation of “will be applied to any kind of signs bearing the white crescent and star on red basis as stipulated in the Constitution that are used as the indicators of the sovereignty of the State of the Republic of Turkey” should be omitted. The expression of “in other ways” is also vague and should be taken out of the text.
Even if we do not consider the national anthem as a holy value, it is a march that represents the country and not just a piece of music. Naturally, this should not avoid a discussion on the national anthem and prevent the suggestion of changing it.
The sentences of this provision are rather high. They should be reduced and the alternative of judicial fines should be included.
In short, rather than cancelling the provision completely the provision should be reworded in the following way (recommendations for the sentences have been left open):
ARTICLE 300 – (1) A person who tears, burns and publicly humiliates the Turkish flag shall be sentenced to imprisonment of… 
(2) A person publicly insulting the National Anthem shall be sentenced with imprisonment of…
(3) If the crime defined in the present paragraph is committed by a Turkish citizen in a foreign country, the penalty shall be increased by one-third.

First Opinion
Laws are texts of interest to the whole of society. In developing laws social affiliations that might divide the society should not be out up front. Instead of creating a separation between belonging/not belonging an understanding of embracing and developing differences should be preferred. It should not be forgotten that especially in Turkey and in particular among the people living in this region the human being come from different ethnic origin and are parts of a mosaic with their languages, cultures, ways of living and beliefs.
Therefore, it is obvious that putting the values of one part of society above the values of another part and showing a racist-chauvinistic approach will not unify the society but separate it. A protective umbrella for values of the whole society should be developed instead. This is possible in developing the freedom of expression the use of which requires responsibility.
An approach built on holiness is bound to remain weak. It should not be forgotten that everybody has his/her own feelings of affiliation and holy values. The expectation that the while society should have the same holy values is not only meaningless but also a goal impossible to be achieved.
Instead of developing holy values one should act flexible to embrace the whole of society with its differences. The expectation from the State is that it takes possession of universal values and human rights for everyone. The State has to display an objectivity that ensures that everyone is his/her own self.
The Handyside v. UK case is often cited in this connection. The ECoHR ruled in 1976 “Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”
Freedom of expression is a right that requires responsibility to be used. It is the basic common denominator of society and does certainly not mean an unlimited freedom. There are conditions and situations that justify restriction.
The limits for restriction of the freedom of expression are not only derived from national law in order to be legitimate, but also have to rely on Article 10 ECHR. The restriction has to meet a social need and has to be applied according to the proportion necessary in a democratic society.
The restriction must be based on a law and has to meet a social need defined in law and necessary for a democratic society. It most certainly must be in proportion. According to the judgments of the ECoHR legality means that the intervention into freedoms has to be based on national legislation. No restriction is accepted that is not based on law. Yet, only the existence of a law is not enough. The law has to be clear, accessible for all parts and must be understandable.
In other words, restrictions even of they are based on law will turn into a violation of the right of the rules are not clear, accessible and understandable.
In particular in this sense Article 301 TPC is not clear and far from being understandable. Whoever reads the provision can interpret it according to his/her approach. It is formulated well defined and open to interpretation. It carries many elements that may lead to arbitrary implementation of the judiciary that lacks the complete installation of democratic habits.
As long as this ambiguity continues practices of charging an author whose novel written in Turkish was translated into 42 languages with “insult of Turkishness” because he expressed his opinion on the Armenian question will continue. This approach contains the prejudged acceptance that the author is obliged to think as the society in general, the official history or the official thesis. If this is the case the freedom of expression is restricted to declare what the official ideology permits. At this point areas of immunity that the individual can claim against the State and the rights of opposition are concerned. It should be remembered that it is one of the most basic criteria for democracies that minorities have the right to become the majority.
Because of that the understanding of the State putting the holy State up front has to be abandoned. A form of administration has to be installed that believes in the sovereignty of society and respects human rights. The legislation has to be formed in this kind of understanding based on freedom.
Besides all this the offence of insult of persons and institutions was defined in other provisions and, therefore, there is no social need for an additional provision.
Therefore, Article 301 TPC should be abolished completely since it is a big obstacle in front of freedoms and has shown this in recent practice.

First Opinion
Even though the investigation and prosecution of the offence depends on the complaint of the State in question according to paragraph 2 of the provision each State should protect its own flag and symbols of sovereignty. It is not appropriate that one State acquires the duty to protect the symbols of another State and makes legal provisions for it. The provision was narrowed to “flied flags”, but still it should be the duty of that State to protect its own flag.
With this provision and offence that a State does not consider as such for its own citizens within the borders of its country can become an offence for citizens of the Turkish Republic within Turkey. The provision was made in line with the understanding of the holy State in Turkey trying to spread this attitude. Yet, each society attaches different meanings to symbols such as the flag. We believe that it is absurd to attach a value to a symbol that does not exist in the originating society and to expect that the people in Turkey will abide to it.
For this reason, Article 341 should be cancelled altogether.