Articles of condemnation

01 Aug 07 | Comment

Not even the murder of the key defendant has deflected the determination of an Istanbul prosecutor to pursue an Armenian-Turkish newspaper in the criminal court. The case against Agos continues to embarrass a Turkish government pledged to re-invigorate stalled negotiations for entry into the European Union after a resounding general election victory.

That Hrant Dink was no longer alive to answer charges of ‘defaming Turkishness’ was acknowledged at a hearing this June this year, nearly six months after the journalist was gunned down in front of the offices of Agos, the newspaper he helped to establish. The prosecution is still demanding sentences of up to three years imprisonment for the weekly’s proprietor Serkis Seropyan and Mr Dink’s son, Arat, who, as responsible editor, reprinted the actionable interview with Hrant Dink for Reuters in which he spoke of the genocide of Armenians in the Ottoman Empire in 1915.

The proceedings against Mr Dink’s successors will increase pressure on the new Turkish government to amend or abolish a raft of legislation that has served to isolate state institutions from criticism and stifle debate about the country’s own history.

Tayyip Erdogan of the Justice and Development Party (AKP) emerged from the recent elections as the first prime minister in over 50 years to win a second term in office with a larger share of the popular vote. Mr Erdogan is now expected to use this mandate to select a new president who will cooperate with his party’s legislative agenda. The outgoing president, Ahmet Nejdet Sezer, had used his power of veto to stymie a government he believed was trying to impose an Islamic agenda on the very secular Turkish establishment. Mr Erdogan’s supporters say he is simply trying to make an aloof bureaucracy more accountable.

In the wake of his electoral victory, Mr Erdogan has floated proposals for a new constitution to replace the document bequeathed by martial authorities after the 1980 military coup. It is still not clear however whether the government will seek the abolition of statutes which use criminal courts to protect state institutions from defamation. The outgoing minister for justice, Cemil Cicek, has defended in principle the existence of statutes like the notorious Article 301, which makes it an offence to insult ‘Turkishness’, citing similar European legislation used to protect core institutions from lèse-majesté.

Ironically, 301 is a recent law – a response to European disapproval of Article 159 of the penal code, which provided stiffer penalties for similar offences. Whereas 159 required the assent of the minister for justice to initiate proceedings, 301 cases can be instigated by individual prosecutors, with the government unable to provide guidelines or in anyway interfere. The result is that certain courts have become ‘ultra-nationalist’ hot spots where litigation-happy prosecutors bring cases against prominent individuals before sympathetic judges.

At present, the laws draw a distinction between ‘criticism’, which is protected by a constitutional commitment to free speech, and ‘insult’, which is not. In practice, most cases result in acquittal – the real punishment being the harassment of being subjected to a protracted set of hearings. The Turkish criminal system is based on the French magisterial system – cases proceed as investigations with the court convening at infrequent intervals to evaluate progress. A complaint by a private individual can be enough to initiate this protracted process. This is in contrast with the Anglo-Saxon system, where a trial only begins after the prosecution has assembled a case which it believes will result in a conviction.

Hrant Dink was convicted under Article 301 in October 2005. It was undoubtedly that trial which attracted the attention of his young assassin, who confessed that he was avenging Mr Dink’s (misreported) ‘loathing’ of the ‘Turkishness of his blood’. That murder has prompted the police to provide protection for others charged under 301.

‘In normal circumstances you would not expect the Agos case to end in a conviction,’ said Agos columnist Aydin Engin, who was himself acquitted under article 288 of insulting the judiciary at the June hearing. On 18 July the court met again but was adjourned to consider the defence argument that the judge in the case could no longer be regarded as impartial having already presided over past cases involving the Dink family. The trial will continue on 11 October.

Fight injustice whatever the cost

20 Jan 07 | Comment

Why, when everyone else accused under Article 301 [a controversial article of Turkey’s penal code, introduced in June 2005, that makes it a crime to insult ‘Turkishness’ or Turkey] of our penal code benefited from a legal loophole, was Hrant Dink the only one to be found guilty?

I’m not the only one to be asking myself this question: the Armenians and a good many Turks are asking themselves the same.

In the case of the Nobel Prize-winning novelist Orhan Pamuk, lawyers left no stone unturned to find legal reasons why there was no case and the law dismissed the charges before it came to court. There was a similar process in the case of the novelist Elif Safak. Even thought her case had been given massive media publicity, it was dismissed at the first hearing; the author herself was not even in court.

Everyone breathed a sigh of relief: even the prime minister telephoned to express his relief; journalists and academics went through precisely the same process after the debacle surrounding the Armenian conference [a conference on the massacre of the Armenians that met opposition from the Turkish government in 2005].

Please don’t think I’m envious: that’s not the point. I’m simply trying to understand why I’ve never benefited from the same approach. The day after my ‘invitation’ to the prefecture, for a thinly veiled warning, several newspapers opened an attack on me for my ‘hatred of Turks’ on the grounds that in one of my essays on Armenian identity I had claimed ‘the pure blood that would replace the tainted blood of the Turk, flows in the noble veins that the Armenians are called to join with Armenia’. I was not worried when the court started its inquiry: I could fall back on what I had actually written and my own good faith.

The investigating judge, who read the entire article and not simply that one phrase torn totally out of context, determined that I had had no intention at all of ‘insulting Turkishishness’ and that the farce should stop there: there was no case to answer. But the ministry thought differently.

Even that didn’t entirely destroy my confidence: I was convinced that at any moment in the trial, the court would realise its mistake and stop proceedings. A group of experts consisting of three professors from Istanbul University was of the same opinion. Imagine my surprise, then, when I was convicted.

‘In the name of the Turkish people’ the judge affirmed that [under Article 301] I had ‘insulted Turkishness’. I could have put up with anything, but not that. I chose to appeal, even to go to the European Court. I also came to the conclusion that if things went badly, I would leave my country: anyone convicted of such a crime had no right to go on living alongside those citizens he had denigrated.

The court of appeal upheld the sentence in spite of the chief justice’s demand that I be acquitted. At each stage of the trial, the papers repeated the same tired old phrase, claiming I had said ‘Turkish blood is tainted’. Each time, they elaborated on my role as ‘the Turk-hater’. In the corridors of the ministry of justice, fascists attacked me with racist slogans; I was threatened by post, by telephone and by email.

I felt like a pigeon: constantly looking nervously to my left, my right, in front, behind as they do. It isn’t easy to put up with all that, particularly when the threats begin to touch those close to you. There were moments when I thought there was no alternative but to leave the country. My family and my children supported me and were ready to come with me if that was what I decided to do.

But where to go? To Armenia? Could anyone like me, someone incapable of holding his tongue in the face of injustice, remain silent in the presence of the huge injustices in that country? Wasn’t I going to find myself in even greater difficulties than here in Turkey? And there was absolutely no question of exile in Europe. I had been there recently for a few days and had begun to have withdrawal symptoms: my country needed me; I was impatient to get back. What I wanted was to say in Turkey and fulfil my obligations to the thousands of friends, known and unknown, who supported me and who continue to fight for democracy in Turkey. But if one day I had to leave…

I would take to the road, as my ancestors did in 1915, with no idea of my destination. I’d make the same journey; live with the same grief; suffer the same torment. I wouldn’t go where our hearts lead us but where my feet took me. The final destination doesn’t matter. I hope I’ll never have to go through such a wrenching experience. Even if I do feel I resemble a pigeon, I know that in this country they leave pigeons alone. They continue to inhabit the heart of the capital, even among the mass of humanity that crowds the city. A little nervous perhaps, but all the freer for that.

(more…)