Freedom of Expression in the New TPC

Foreword and Acknowledgments

“Freedom of expression is applicable not only to ‘information’ or’ ideas’ that are favourably received or regarded as in offensive 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’.” [1]

The Handyside v. UK judgment of the European Court of Human Rights eloquently expresses the meaning and scope of freedom of expression. Perhaps this passage should be sent to every judge and prosecutor in Turkey because, despite the important steps taken in certain human rights areas, standard practice in Turkish courts has not changed. Prosecutions of writers, artists and journalists who have expressed their non-violent opinions are an everyday occurrence. For this reason, domestic and international organizations which closely monitor the situation in Turkey have reached the common conclusion that human rights problems in Turkey cannot be solved by legal changes alone, and that minds must also change. Genuine progress cannot be achieved without a change of mentality. If we look historically at the record of the judiciary in Turkey, we see an unfortunate pattern-laws are interpreted in such a way as to narrow rather than broaden freedoms, and the values of the “sacred state” take precedence over the freedoms of the individual.

The conservative interpretation of law in Turkey is so extreme that some words and ideas are applied in a manner that directly contradicts common contemporary understanding of the terms in question. For example, the prohibitions of hate speech (which do exist in several European countries) from Article 312 of the former penal code and Article 216 of the new Turkish PenalCode (TPC) are hardly ever used to restrain speeches inciting hatred against religious and ethnic minorities in Turkey (which are common). Ironically, these provisions are instead used to criminalize any expressions that acknowledge the actual existence of certain minority groups in Turkey. With such reflections in mind, the study you hold in your hands was prepared in order to give guidance in achieving a practical path between these questions of mentality and the law. Examination of the work will show that freedom of expression problems in Turkey stem not only from narrow interpretations or from specific provisions such as the Law to Fight Terrorism. Turkish law as a whole is shot through with freedom of expression issues and difficulties. The Turkish Penal Code contains at least 40 provisions that have the potential to restrict freedom of expression, and there is a risk that these provisions may be applied on a wide range of issues in social life. In short, the aim of the content of this work was to show that problematic legal provisions underlie the restrictions on freedom of  expression. We tried to show this by drawing attention to specific points of concern in the Turkish Penal Code.

The study had another aim, and this concerned the way in which draft laws are developed. In Turkey legislation is usually passed without consulting the views of civil society. We wish that the government, before introducing the Turkish Penal Code as law, had asked NGOs, bar associations, journalists and intellectuals for their views on it. The booklet you hold in your hands is an attempt to show what the penal code might have looked like if there had been a system of genuine consultation.

The views expressed in this booklet are those of the Human Rights Agenda Association, but they were reached by taking into consideration the opinions and views of hundreds of people, in an attempt to find a consensus.

We hope that this study will provide a new perspective for the general public on freedom of expression in Turkey, and be an inspiration for our legislature. Finally we wish to emphasize that this work could never have been conducted without the contributions of many people and institutions.

First of all, we cannot be grateful enough for the financial support provided by the National Endowment for Democracy, based in Washington, which made this study possible.

Günal Kursun, staff member of the Baskent University and the Ankara representative of our organization was responsible for the successful organization of the study and the preparation of the booklet . NalanErkem and Bülent Ecevit Nadas made huge efforts inpreparing the study. Özlem Altiparmak, financial coordinator of our association supported the administration of the project at all times.Our Secretary General Hakan Ataman and our member Yilmaz Ensaroglu supported and gave advice throughout the project. Inaddition we would like to thank Etyen MahcupyanSanar YurdatapanTahir Elci and Özlem Yilmaz for their assistance with the workshops and Özkan Yücel, Tuncer Firat, Gülcin Aktunc Hasipek, Arif Kocer and Murat Dincer fortheir efforts in finalizing the report, as well as all those mentioned at the end of booklet for the contribution they made at various stages of the project.

I commend this study in the hope that it will provide a new perspective and open fresh horizons for all those interested in the subject

Orhan Kemal Cengiz

President of the Human Rights Agenda Association

[1] Judgment of the European Court of HumanRights in the case Handyside v. the United Kingdom, 1976


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