Turkey cois report November 2006

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15.12 As noted in the International Helsinki Federation (IHF) report of June 2006:
“According to the Law on Assemblies Meetings and Demonstrations, which was amended in August 2003, governors were no longer allowed to ban demonstrations. In addition, the previous authority of governors or the Interior Ministry to postpone demonstrations and meetings for 30 days was reduced to ten days. Further, the maximum period for the postponement or ban of a meeting was brought down from three months to one month. While organizers were still required to ‘notify’ the security authorities before demonstrations or meetings, the police often mistook ‘notifying’ as an ‘authorisation’ process. According to HRA, 34 meetings and demonstrations were prohibited by the authorities during the year. Police continued to intervene in demonstrations and open-air meetings organized by Kurdish activists, students, trade unionists, human rights groups or left-wing groups. Excessive security measures and the negative attitudes of the police toward demonstrators led to tensions. According to HRA, security forces used excessive force in 101 demonstrations and meetings compared to 124 in 2004. Seven persons were killed during demonstrations while more than 330 demonstrators, including political and minority activists, human rights activists, students and journalists, were wounded during intervention in these actions.” [10a] (p438)
15.13 The Human Rights Watch (HRW) World Report 2006, published in January 2006, noted that the police had repeatedly used unnecessary force to break up peaceful demonstrations in 2005 and frequently used lethal force when public gatherings caused disturbances. HRW reported that eight demonstrators had been shot dead by police in various incidents such as the incident of November 2005 when the police shot and killed five demonstrators in Hakkari province who were protesting against the Şemdinli attack. [9b]
15.14 The IHD (Human Rights Association) 2005 Balance Sheet on Human Rights Violations in Turkey recorded that 34 meetings and demonstrations were suspended; 24 subjected to legal action; 101 subjected to the intervention of the security forces and nine subjected to physical attacks. [73a] (Violations of right to meet and demonstrate)
15.15 On 17 February 2006 the Turkish Daily News reported that:
“Police with batons held back hundreds of Kurdish demonstrators on Thursday who were throwing bricks and stones at police from atop [sic] a pro-Kurdish political party building in the southern Turkish city of Adana. The demonstration was a continuation of protests a day earlier to mark the seventh anniversary of terrorist Kurdistan Workers’ Party (PKK) leader Abdullah Ocalan’s capture. Some 200 demonstrators were detained after dozens of them threw bricks and stones at police, reports said. Police, wielding truncheons, confronted dozens of protesters at the gates of the pro-Kurdish Democratic Society Party (DTP) building under a shower of stones, CNN-Turk showed. At least two police officials were injured in the clash, the Anatolia news agency said. Elsewhere on Thursday, hundreds of Kurds clashed with police and staged sit-ins in the largely Kurdish Southeast.” [23u]
15.16 The EC 2006 report noted that:
“As regards freedom of assembly, public demonstrations are subject to fewer restrictions than in the past. However, in some cases security forces used excessive force, especially when the demonstrations were carried out without permission. The administrative investigations have been finalised into the incidents during a demonstration promoting women's rights in March 2005. Three members of the Istanbul Directorate of Security have been punished with a reprimand due to ‘Failure in undertaking the duty of training and supervising members under their command.’ A further six staff members have been punished with a salary deduction due to ‘disproportionate use of force when dispersing the demonstrators and speaking to or treating the public in a degrading manner’. The investigation launched by the Chief Public Prosecutor’s Office of Istanbul against seven police officers is currently ongoing.” [71a] (p15)
Freedom of speech and media
16.01 The USSD 2005 report stated that:
“The law provides for freedom of speech and of the press; however, the government continued to limit these freedoms in some cases... The government, particularly the police and judiciary, limited freedom of expression through the use of constitutional restrictions and numerous laws, including articles of the penal code prohibiting insults to the government, the state, ‘Turkish identity,’ or the institutions and symbols of the republic. Other laws, such as the Anti-Terror Law and laws governing the press and elections, also restrict speech. Individuals could not criticize the state or government publicly without fear of reprisal, and the government continued to restrict expression by individuals sympathetic to some religious, political, and Kurdish nationalist or cultural viewpoints.” [5b] (Section 2a)
16.02 The USSD 2005 report continued:
“Active debates on human rights and government policies continued, particularly on issues relating to the country’s European Union (EU) membership process, the role of the military, Islam, political Islam, and the question of Turks of Kurdish origin as ‘minorities’; however, persons who wrote or spoke out on such topics risked prosecution. The Turkish Publishers Association (TPA) reported that serious restrictions on freedom of expression continued despite legal reforms related to the country’s EU candidacy.” [5b] (Section 2a)
16.03 As outlined in the Human Rights Watch (HRW) World Report 2006, published in January 2006:
“As of November 2005 no individuals were known by Human Rights Watch to be serving prison sentences for the non-violent expression of their opinions. However, scores of people were charged with speech-related offenses and threatened with imprisonment, most being indicted under provisions criminalizing insults to the president, the flag, and state institutions. The government failed to eliminate these provisions from the revised criminal code, introduced in June [2005].” [9b]
16.04 The EC 2006 report noted that:
“… the prosecutions and convictions for the expression of non-violent opinion under certain provisions of the new Penal Code are a cause for serious concern and may contribute to create a climate of self-censorship in the country. This is particularly the case for Article 301 which penalises insulting Turkishness, the Republic as well as the organs and institutions of the state. Although this article includes a provision that expression of thought intended to criticise should not constitute a crime, it has repeatedly been used to prosecute non violent opinions expressed by journalists, writers, publishers, academics and human rights activists. In July, the General Assemblies of the Civil and Penal Chambers of the Court of Cassation established restrictive jurisprudence on Article 301. The Court confirmed a six-month suspended prison sentence for journalist Hrant Dink. This was on the basis of Article 301 of the new Penal Code for insulting ‘Turkishness’ in a series of articles he wrote on Armenian identity. Against this background, Article 301 needs to be brought into line with the relevant European standards. The same applies to other provisions of the Penal code which have been used to prosecute the non-violent expression of opinions and may limit freedom of expression.” [71a] (p14-15)
16.05 The EC 2006 report further noted that “Overall, open debate has increased in recent years in Turkish society on a wide range of issues. Notwithstanding this trend, freedom of expression in line with European standards is not yet guaranteed by the present legal framework.” [71a] (p15)
16.06 The EC 2006 report also added that:
“With regard to freedom of expression (including the media), the Ministry of Justice issued a circular in January 2006, regarding cases of freedom of expression in written and visual media. It instructed prosecutors to take into consideration both Turkish legislation and the ECHR. The circular also established a monthly monitoring mechanism of criminal investigations and court cases against the press and media. Some progress can be reported in the area of broadcasts in languages other than Turkish at local and regional level However, the prosecutions and convictions for the expression of non-violent opinion under certain provisions of the new Penal Code are a cause for serious concern and may contribute to create a climate of self-censorship in the country.” [71a] (p14)
16.07 As noted in the Amnesty International (AI) Turkey Memorandum of August 2005:
“Amnesty International has previously welcomed some of the changes made to the Turkish Constitution and legislation since 2001 in order to improve standards related to the right to freedom of expression. Amnesty International considers that the amendment to Article 90 of the Constitution by the government – which gives priority to international treaties on fundamental rights and freedoms to which Turkey is a state party over Turkish domestic legislation – is a key development. However, the organization is nevertheless still aware of numerous cases in which individuals are being prosecuted or have received monetary fines or custodial sentences for the peaceful expression of non-violent opinion. While courts have handed down some landmark judgments which have cited international standards, there are also several examples of important cases where the decisions of the Court of Appeals appear to be in contravention of international standards.” [12i] (Section on Freedom of expression)
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16.08 The AI Turkey memorandum continued:
“The restrictions provided for in the new TPC [Turkish Penal Code] appear to be considerably broader than this and are not limited to those instances which are demonstrably necessary on one of the permissible grounds. As such, the law could be used to penalize individuals exercising their human right to freedom of expression on matters of political opinion. For example, Section 3 of Part 4 of the new TPC entitled ‘Crimes against signs of the state’s sovereignty and the honour of its organs’ (Articles 299 – 301) could be used to penalize individuals who exercise their right to freedom of expression by expressing political views. In particular, Amnesty International is disturbed that this section of the new TPC criminalizes offences such as ‘insulting’ the President (Article 299), or ‘denigrating’ the Turkish flag or anything carrying its replica and the national anthem (Article 300), Turkishness, the Republic, the Parliament, the government, the judiciary, the military and security forces (Article 301).” [12i] (Section on Freedom of expression)
16.09 The International Helsinki Federation (IHF) report of June 2006 noted that:
“The independent Network for Monitoring and Covering Media Freedom and Independent Journalism reported in July that judicial harassment and political harassment of journalists increased dramatically in April through June 2005. BiaNet also reported that 12 journalist [sic] were charged with ‘disseminating terrorist propaganda’ under the Anti-Terrorism Law, including mainstream journalists who reported on the Kurdish question. According to the annual report of this source, 17 journalists, who discussed current human rights issues and the cancellation of a conference on the Armenian issue by a court in their reports or articles, were prosecuted for ‘influencing the court decision’ and ‘attempting to influence fair trial’.” [10a] (p5)
16.10 On 18 November 2005 BBC News reported that the Turkish publisher Fatih Tas had gone on trial (under article 301 of the Turkish Penal Code) for insulting the Turkish state and the founder of the Turkish republic for publishing a translation of a work by a US academic that included passages highly critical of the Turkish military during the Kurdish insurgency of the 1980s and 1990s. The BBC further noted that the prosecutor had demanded each insult (which each carries a maximum prison sentence of three years) to be considered as a separate charge. [66g]
16.11 On 23 December 2005 the Turkish Daily News reported that:
“In a new twist in the saga of Article 301 of the Turkish Penal Code (TCK), writer Zülküf Kışanak and journalist Aziz Özer have been found guilty of insulting the Republic of Turkey and sentenced to five months’ imprisonment each… The court decided that the writer had insulted the republic and sentenced him to a prison term of five months, later reduced to a fine only of YTL 3,000. The prosecutor had demanded a sentence of three years in prison. The same court later sentenced Aziz Öner, owner/editor of periodical Yeni Dünya İçin Çağrı, to five months’ imprisonment for articles that appeared in his magazine. The sentence was later reduced to a YTL 6,000 fine.” [23m]
16.12 The IHD (Human Rights Association) 2005 Balance Sheet on Human Rights Violations in Turkey recorded that 27 people were tried under section 159 of the [old] Turkish Penal Code and section 301 of the new Turkish Penal Code in 18 completed cases. Ten people were acquitted; 15 people were sentenced to 82 months and 3 days imprisonment; a sentence of 45 months and 3 days was converted into a fine and the case against one person was dismissed. A total of 18 additional cases were brought against 39 people under the same articles but these cases were not completed in 2005. [73a] (Violations of right to free speech, thought and belief)
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16.13 The UK Foreign and Commonwealth Office (FCO) Human Rights Annual Report 2006, released in October 2006, noted that:
“The new Turkish penal code limits the range of circumstances in which people can be convicted for the nonviolent expression of opinion. Both official and NGO figures suggest that the number of prosecutions and convictions under the penal code articles traditionally used against individuals for peaceful expressions of opinion has been falling for several years and has continued to fall since the new code came into force.” [4n] (p136)
Journalists
16.14 Reporters without Borders (RSF) in their 2006 annual report on Freedom of the Press Worldwide –Turkey noted that:
“The country’s new criminal code, designed to help Turkey gain membership of the European Union, came into force on 1 June 2005 and imposes new restrictions on journalists. The vagueness of some parts of it allows judges to unfairly imprison them. Prime Minister Recep Tayyip Erdogan won a libel suit against Fikret Otyam, of the weekly Aydinlik and a well-known painter, who was ordered to pay him €2,835 damages. It was at least the fourth time since December 2004 that Erdogan had sued a journalist.” [11c]
16.15 The RSF 2006 report further stated that:
“Some parts of the new criminal code, far from bringing Turkish laws on freedom of expression into line with Europe’s, could encourage new prosecutions of journalists and increase self-censorship habits that undermine press freedom. Article 305 punishes with between three and 10 years imprisonment actions considered harmful to ‘basic national interests,’ including claims concerning the ’Armenian genocide’ and calls for withdrawal of Turkish troops from Cyprus. Article 301 provides for between six months and three years in jail for ‘belittling Turkishness’, the republic and state bodies and institutions.” [11c]
16.16 The USSD 2005 report noted that:
“According to the government, there were no journalists held on speech violations during the year; however, the government reported that at year’s end there were 25 journalists who were being held on charges related to terrorism or other violent crimes… Prosecutors harassed writers, journalists, and political figures by bringing dozens of cases to court each year under various laws that restrict media freedom; however, judges dismissed many of these charges. Authorities often closed newspapers temporarily, issued fines, or confiscated newspapers for violating speech codes. Despite government restrictions, the media criticized government leaders and policies daily and adopted an adversarial role with respect to the government.” [5b] (Section 2a)
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16.17 As reported on 28 February 2006 by Reporters without Borders (RSF):
“Reporters Without Borders said today it was very concerned about two women journalists of the pro-Kurdish news agency DIHA, Evrim Dengiz and Nesrin Yazar, accused by police of making fire-bombs allegedly found in their car. They face life imprisonment. Their car was stopped by anti-terrorist police in Mersin (300 km south of Ankara) on 15 February after they had covered a demonstration marking the seventh anniversary of the detention of Kurdish separatist leader Abdullah Öcalan, head of the of PKK/Kongra-Gel party. They were taken away from the car while it was searched, after which a policeman said he had found fire-bombs in it and accused them of making them for the demonstration. They were arrested and a judge later declared the case secret and the Mersin prosecutor called for life imprisonment under article 302-1 of the criminal code for ‘undermining the unity or independence of the state and nation.’ The article excludes any possibility of amnesty.” [11b]
16.18 Reporters without Borders (RSF) in their 2006 annual report on Freedom of the Press Worldwide –Turkey noted that:
“The country’s Kurdish and Armenian minorities remain under great pressure. Editor Hrant Dink, of the bilingual Turkish-Armenian weekly Agos, was given a six-month suspended prison sentence for ‘insulting Turkishness’ (article 301-1 of the criminal code). Five journalists from pro-Kurdish media outlets were arrested in 2005 and four of them arbitrarily held for questioning in Gülec (eastern Anatolia), where they had gone to report on the release of a Turkish soldier by activists of the Kurdistan Workers Party (PKK).” [11c]
16.19 The EC 2006 report confirmed that:
“In July, the General Assemblies of the Civil and Penal Chambers of the Court of Cassation established restrictive jurisprudence on Article 301. The Court confirmed a six-month suspended prison sentence for journalist Hrant Dink. This was on the basis of Article 301 of the new Penal Code for insulting "Turkishness" in a series of articles he wrote on Armenian identity.” [71a] (p14)
16.20 On 10 February 2006 the Turkish Daily News reported that the Şanlıurfa Third Criminal Court had acquitted Armenian-Turkish journalist Hrant Dink and the Association of Human Rights and Solidarity for Oppressed Peoples (Mazlum-Der) Vice President Şeyhmus Ülek who had been accused of insulting the national anthem. In October 2005 Dink had received a suspended sentence for ‘insulting Turkishness’ and in December 2005 charges were brought against him for ‘insulting the Turkish judiciary’ in a trial that will start on 16 May 2006 in Istanbul. [23r]
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16.21 As reported by BIA News Center on 14 February 2006:
“The Network for Monitoring and Covering Media Freedom and Independent Journalism” - BIA Media Monitoring Desk released three separate Three-Monthly Media Monitoring Reports in 2005 and drew attention to the cases brought against journalists, intellectuals, publishers and human rights activists. According to these reports, all of the 157 journalists, publishers, and human rights activists called attention to the juridical practices in cases opened against them and said everyone who states and opinion [sic] or makes a criticism, may face a prison sentence.” [102a]
16.22 “A total of 29 journalists, writers and publishers have been taken to court on grounds of article 301 of the TCK on ‘insulting the Turkish identity, Republic, and the institutions of the State.’ Some trials are still continuing. Local courts have convicted eight people in these cases…17 journalists, who discussed current human rights issues, such as the Kiziltepe case, the cancellation of the Ottoman Armenians Conference, and Torture case, through their reports or articles, are being charged with ‘Influencing the court decision,’ and ‘Attempting to Influence Fair Trial,’ based on the Press Law and the Penal Code… 15 journalists and/or human rights activists have been taken to court in 2005 based on article 312 of the old TCK on ‘hidden incitement of crime,’ or article 216 of the new TCK on ‘inciting hatred and enmity or humiliation.’ Some of these cases will continue through 2006… 12 journalists stand ‘terrorism’ trials, four stand ‘Ataturk’ trials and five stand ‘Mafia’ trials.12 journalist-writers are being charged with ‘disseminating terrorist propaganda’ based on TCK or the anti-Terrorism Law.” (BIA News Center, 14 February 2006) [102a]
16.23 BIA News Center further reported that, according to the BIA Media Monitoring Desk reports:
“Only seven reporters were detained in 2005, compared with a total of 53 in 2004… However, the decrease in the number of detentions was not followed by a decrease in violence against journalists and media organizations: In 2004, a total of 20 journalists, covering demonstrations and two media companies were attacked. In 2005, a total of 22 journalists and 16 media companies were attacked.” [102a]

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Media and Press
16.24 As outlined in the European Commission 2005 report:
“As regards freedom of the press, there have been some positive developments, such as acquittals and a number of releases, as a result of the adoption of the new Press Law and the new Penal Code, although, as indicated above, journalists continue to face prosecution and are sometimes convicted for the expression of non-violent opinion…” [71d] (p26)
16.25 The EC 2005 report also noted that:
“In response to fears about restrictions on freedom of the press in the new Penal Code, the Press Council established a new Legal Assistance and Support Service in June 2005. This Service will reportedly provide a lawyer free of charge to journalists facing charges brought against them under provisions of the new Code. The Service will also designate an observer to follow court cases involving journalists. According to International PEN, there are currently an estimated 60 writers, publishers and journalists under judicial process in Turkey.” [71d] (p26-27)
16.26 The Freedom House report ‘Freedom of the press 2005’ (released on 25 August 2005) noted:
“Constitutional provisions for freedom of the press and of expression are only partially upheld. As part of its ongoing reforms to prepare for membership in the European Union, Turkey passed another series of reforms in 2004 that affected press freedom. A new press code was adopted in June that includes heavy fines instead of prison sentences for some press crimes, permits noncitizens to own periodicals and serve as editors, protects against disclosure of sources, and prevents authorities from closing publications or hindering distribution.” [62e]
16.27 “The new code which was due to take effect in April, 2005 reduced the minimum sentence for defamation. However, prison sentences remain in place for crimes such as stating that genocide was committed against the Armenians in 1915, instigating hatred in one part of the population against another (used against journalists who write about the Kurdish population), or calling for the removal of Turkish troops from Cyprus. Criminal defamation laws for insult against institutions such as the president, the military, and Turkish national identity stand as well, and sentences are in fact longer for members of the media than for others.” (Freedom House, ‘Freedom of the press 2005’) [62e]
16.28 The Freedom House ‘Freedom of the press 2005’ continued:
“Censorship is not explicit, but content censorship and self-censorship occur among editors and journalists, who are concerned about violating the many legal restrictions. Often, the courts side against journalists, who continue to be jailed and face huge fines for various press offenses… Despite overt government restrictions, independent domestic and foreign print media provide diverse views, including criticism of the government and its policies. Turkey’s broadcast media are well developed, with hundreds of private television channels, including cable and satellite, as well as commercial radio stations. Media are highly concentrated in a few private conglomerates, which subtly pressure their editors and journalists to refrain from reporting that will harm their business interests. This could include avoiding criticism of the government, which often has contracts with other arms of the companies and advertisers.” [62e]
16.29 In the year 2005, Turkey ranked 105 (out of 194 countries) in the Freedom House Table of Global Press Freedom Rankings and the status of its press was considered ‘partly free’. [62b] In 2004 the ranking for Turkey was 107. [62a] In the Reporters without Borders (RSF) ‘Worldwide Press Freedom Index 2005’, published on 20 October 2005, the ranking of Turkey was 98 out of 167 countries (ranging from one for the most free to 167 for the least free). The previous ranking for Turkey was 113. [11a]
16.30 As stated in a press release issued on 7 July 2005:
“The OSCE Representative on Freedom of the Media, Miklos Haraszti, today praised the Turkish authorities for introducing important changes to the new Penal Code, following a legal review his Office produced last May listing 23 provisions that needed to be revoked. However, ‘despite some improvements, the amendments do not sufficiently eliminate threats to freedom of expression and to a free press’, Mr Haraszti said… Relating to Article 305 on ‘offences against fundamental national interests’, the Representative noted with satisfaction that two examples in the explanatory ‘Reasoning Document’ – making it a crime to demand the withdrawal of Turkish troops from Cyprus or to claim that Armenians were exposed to genocide – have been removed. On a negative note, however, Mr Haraszti observed three major areas where media freedom remains endangered: the right of journalists to report and discuss on public-interest issues is not secured; restrictions on access and disclosure of information have not been lifted; defamation and insult provisions remain a criminal rather than a civil offence, thereby leaving the free discussion of public affairs at risk. The Representative expressed his hope that modernisation of the Turkish Penal Code would continue in the spirit of improving the freedom of public scrutiny, while the provisions promoting self-censorship would all be removed.” [14a]
16.31 On 5 September 2006, The Times reported that:
“The author of this summer’s Turkish bestseller is to stand trial for allegedly insulting Mustafa Kemal Ataturk, the country’s revered founding father, in her popular revisionist biography of Latife, his wife. The case is the latest in a series of high-profile lawsuits initiated against writers and intellectuals that has brought attention to the shortcomings of the supposedly reformed Turkish legal system with regard to freedom of expression in the European Union candidate country. Mrs Çalislar joins Elif Safak, who will go on trial next month over her popular novel The Bastard of Istanbul, in which a fictional Armenian character refers to ‘Turkish butchers’ who killed large numbers of Armenians in Turkey during the First World War. Similar charges of ’insulting Turkishness’ also put Orhan Pamuk, Turkey’s most famous author, in the dock this year. Perihan Magden, a journalist, stood trial for her support of conscientious objection.” [107]