A hell for free souls!


Wednesday, January 30, 2008, Turkish Daily News

Orhan Kemal Cengiz

We cannot progress in solving our free speech problem at all. It is like a nightmare. The AKP (Justice and Development Party) has totally failed to make any significant change in Article 301. What they are proposing, as fellow columnist Yusuf Kanlı has wisely stated, is no reform, but an attempt to deceive. I accept that unless mentality changes the 301(s) will always be replaced by something else. But there is blood over this article, it turned into a terrible sin; it is a symbolic duty, a moral obligation for this government to get rid of this article.

The judgment of the Supreme Court of Appeals in the case against Orhan Pamuk, clearly showed that the judiciary has no intention to change its stance toward ‘denigrating Turkishness’. The Appeal Court comes to the conclusion that every Turkish citizen can bring a compensation case against Pamuk for his remarks about the ‘Armenian genocide’. This shows that even if we get rid of Article 301, the judiciary will immediately fill this gap with other very strong sanctions from private law. The last ruling of the Appeal Court concluded that 70 million Turks can bring cases against Pamuk because of his ‘insulting remarks’ about Turkishness!

One hundred other 301s

Atilla Yayla received a suspended 15 month prison sentence this Monday because he allegedly mentioned Atatürk by referring to him as ‘this man/guy’. He has to pay attention to every single word he utters from now on. If he is found guilty once again, he has to serve this one year and three months in addition to the new sentence he receives. He has to remain silent. Will any academic dare say anything about Kemalism from now on then? I do not think so.

I also would like to mention some other cases that you may think are practical jokes.

Lawyer on trial

Once I saw a caricature in a magazine, I cannot remember its name. This caricature still vividly exists in my mind. In the first scene we saw a man who was hanged on a wall with his wrists cuffed. He says, ‘I know my rights, call my lawyer’. In the second scene we have a broader perspective and realize that there is another man beside him hanging on the wall like him, saying, ‘I am here’. This caricature has always reminded me of my dear friend Tahir Elçi, who is one of the frontline fighters of human rights in Turkey. In 1999 we were attending hearings in the European Court of Human Rights. Tahir was following the most horrific cases in southeastern Turkey. I was trying to help him before the European Court. We attended the hearings before the court in the Özkan and others vs. Turkey case, which was one of the most tragic village destruction cases the court had ever handled. One month later, I was representing Tahir before the European Court in the case Tahir Elçi and others vs. Turkey, in which the torture and mistreatment Tahir and his friends suffered was being reviewed by the court. It was a funny experience for all of us. He was the lawyer of the plaintiffs in a hearing and just one month later he was a plaintiff himself, giving testimony regarding his own case in another hearing in front of the same court.

Tahir has always followed the most difficult cases in Turkey and of course he has never been away from trouble. One of the recent cases he has been following is Uğur Kaymaz’s case that concerns the extra judicial killing of 12-year-old Uğur and his father in front of their house in Mardin Kızıltepe in the Southeast. The police claimed that there was an exchange of fire between the deceased ‘terrorists’ and themselves. However, forensic examination showed that both victims were shot from behind. Eskişehir Criminal Court was handling this case, but what happened in the end was that the members of the special forces who carried out this operation were acquitted. However, Elçi is now being tried because of his alleged �attempt to influence a fair trial. After one of the hearings in the Kaymaz case, Tahir had given the following statement to the press: ‘We have not seen a fair attitude from the judges. They were insensitive toward our demands. We want a unbiased trial, we want justice’. This is the statement that put him on trial.

Sometimes I see Turkey as a surrealist country. Where else could this happen? The accused, in an apparent extra judicial case, have been acquitted but the lawyer of the victims put on trial with charges of ‘attempting to influence a fair trial’ in a country in which the ‘real influencers’ have never been tried.

Another surrealist case

Nalan Erkem was the member of board of directors of the İzmir Bar Association and she was responsible for the bar’s Torture Prevention Committee. I had the privilege to work with her in this committee that we established together. As a result of its work, many cases of torture were brought to daylight and many cases were filed against the security forces that allegedly mistreated people under custody. On Nov. 5-6, 2003 there was an attempted revolt in the children dormitories of İzmir’s Buca Prison. Nalan and some other lawyers went to prison to find out what had been happening there. They spoke to children and recorded their testimonies. The children had claimed that the gendarmeries forces and the guards beat them and they were kept in the cells stripped naked. The lawyers also noted that there were bruises and lesions on their faces and bodies. After exhausting attempts to bring the grievances of these children to the attention of the relevant authorities in İzmir and receiving no response to their applications, the lawyers sent a petition to the then minister of justice. Nalan had also held a press conference and read out this petition to the members of the press. Again, the accused who allegedly mistreated the juveniles in the prison were acquitted but Nalan, an anonymous heroine in the Turkish human rights movement, is on trial. The prosecutor argued that by holding this press conference, Erkem abused her duties.

In short, our freedom of expression problem is not limited to Article 301 and Turkey has become a hell for free souls!


The next hearing in Tahir Elçi’s case is tomorrow and it is before the Eskişehir Court for Serious Crimes in Eskişehir at 9:00 am. The first hearing in Nalan Erkem’s case will be held on Feb. 27 at 11:00 am in the fourth branch of the Court for Serious Crimes in İzmir.