The European Court of Human Rights unanimously ruled on October 25, 2011 that the recognition of the Armenian Genocide cannot be criminalized in Turkey. The verdict stemmed from a case brought to the court by noted scholar Taner Akcam.
In the case Taner Akcam vs. Turkey, the court ruled that Turkey’s ongoing
criminal prosecution of scholarship on the Armenian Genocide issue constituted a
violation of Article 10 (freedom of expression) of the European Convention on
Human Rights.
The court ruled that the Turkish law meant the Akcam lives in constant fear of prosecution for his views about the vents of 1915. In his suit Akcam said that the fear of prosecution for his views on the Armenian issue had caused him considerable stress and anxiety and had even made him stop writing on the subject.
Akçam, who is an associate professor at the Robert Aram, Marianne Kaloosdian
and Stephen and Marion Mugar Chair in Armenian Genocide Studies at Clark
University in Worcester, Mass., is a Turkish and German national who was born in
1953. As a professor of history, he researches and publishes extensively on the
historical events of 1915 concerning the Armenian population in the Ottoman
Empire. The Republic of Turkey, one of the successor states of the Ottoman
Empire, does not recognize the word “genocide” as an accurate description of
events. Affirming the Armenian issue as “genocide” is considered by some
(especially extremist or ultranationalist groups) as a denigration of
“Turkishness” (Türklük), which is a criminal offence punishable under Article
301 of the Turkish Criminal Code by a term of imprisonment of six months to two
or three years. Amendments have been introduced following a number of
controversial cases and criminal investigations brought against such prominent
Turkish writers and journalists as Elif Şafak, Orhan Pamuk and Hrant Dink for
their opinions on the Armenian issue.
Notably, in October 2005 Hrant Dink, editor of Agos, a bilingual
Turkish-Armenian newspaper, was convicted under Article 301 for denigrating
“Turkishness.” It was widely believed that because of the stigma attached to his
criminal conviction, Dink became the target of extremists and in January 2007 he
was shot dead.
The three major changes introduced to the text were: to replace “Turkishness”
and “Republic” with “Turkish Nation” and “State of the Republic of Turkey,” to
reduce the maximum length of imprisonment to be imposed on those found guilty
under Article 301; and, most recently in 2008, to add a security clause, namely
any investigation into the offence of denigrating “Turkishness” has to first be
authorized by the Minister of Justice.
On 6 October 2006 Akçam published an editorial opinion in Agos criticizing
the prosecution of Hrant Dink. Following that, three criminal complaints were
filed against him by extremists under Article 301 alleging that he had
denigrated “Turkishness.” Following the first complaint, he was summoned to the
local public prosecutor’s office to submit a statement in his defense. The
prosecutor in charge of the investigation subsequently decided not to prosecute
on the ground that Akçam’s views were protected under Article 10 of the European
Convention. The investigations into the other two complaints were also
terminated with decisions not to prosecute. The Government submitted that it was
unlikely that Akçam was at any risk of future prosecution on account of the
recent safeguards introduced to Article 301, notably the fact that authorization
was now needed from the Ministry of Justice to launch an investigation.
Accordingly, between May 2008 (when this amendment was introduced) and
November 2009, the Ministry of Justice received 1,025 requests for authorization
to bring criminal proceedings under Article 301 and granted such authorization
in 80 cases (about 8% of the total requests). Furthermore, Akçam had not been
prevented from carrying out his research; on the contrary, he had even been
given access to the State Archives. His books on the subject are also widely
available in Turkey.
According to Akçam, however, the percentage of prior authorizations granted
by the Ministry of Justice was much higher, and these cases mainly concerned the
prosecution of journalists in freedom of expression cases. He submitted
statistics from the Media Monitoring Desk of the Independent Communications
Network for the period from July to September 2008 according to which a total of
116 people, 77 of whom were journalists, were prosecuted in 73 freedom of
expression cases. Akçam further claimed that the criminal complaints filed
against him for his views had turned into a harassment campaign, with the media
presenting him as a “traitor” and “German spy.” He has also received hate mail
including insults and death threats. He further alleged that the tangible fear
of prosecution had not only cast a shadow over his professional activities – he
effectively stopped writing on the Armenian issue in June 2007 when he brought
his application to this Court – but had caused him considerable stress and
anxiety.
Complaints, procedure and composition of the Court Relying on Article 10
(freedom of expression), Akçam alleged that the Government could not guarantee
that he would not face investigation and prosecution in the future for his views
on the Armenian issue. He further alleged that, despite the amendment to Article
301 in May 2008 and the Government’s reassurances, legal proceedings against
those affirming the Armenian “genocide” had continued unabated. Moreover, the
Government’s policy on the Armenian issue had not in essence been changed and
could not be predicted with any certainty in the future.
The application was lodged with the European Court of Human Rights on June
21, 2007. Judgment was given by a Chamber of seven, composed of Françoise
Tulkens (Belgium), President; Danutė Jočienė (Lithuania), David Thór
Björgvinsson (Iceland), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl
Karakaş (Turkey), Guido Raimondi (Italy), Judges; and also Stanley Naismith,
Section Registrar.
The decision of the Court found that there had been an
“interference” with Akçam’s right to freedom of expression. The criminal
investigation launched against him and the Turkish criminal courts’ standpoint
on the Armenian issue in their application of Article 301 of the Criminal Code
(any criticism of the official line on the issue in effect being sanctioned), as
well as the public campaign against him, confirmed that there was a considerable
risk of prosecution faced by persons who expressed “unfavorable” opinions on the
subject and indicated that the threat hanging over Akçal was real.
The measures adopted to provide safeguards against arbitrary or unjustified
prosecutions under Article 301 had not been sufficient. The statistical data
provided by the Government showed that there were still a significant number of
investigations, and Akçam alleged that this number was even higher. Nor did the
government explain the subject matter or the nature of the cases in which the
Ministry of Justice granted authorization for such investigations. Moreover, the
court agreed with Thomas Hammarberg, Human Rights Commissioner of the Council of
Europe, in his report which stated that a system of prior authorization by the
Ministry of Justice in each individual case was not a lasting solution which
could replace the integration of the relevant Convention standards into the
Turkish legal system and practice.
Furthermore, in the Court’s opinion, while the legislator’s aim of protecting
and preserving values and State institutions from public denigration could be
accepted to a certain extent, the wording of Article 301 of the Criminal Code,
as interpreted by the judiciary, was too wide and vague and did not enable
individuals to regulate their conduct or to foresee the consequences of their
acts. Despite the replacement of the term “Turkishness” by “the Turkish Nation,”
there was apparently no change in the interpretation of these concepts.
For example, in the case Dink v. Turkey of 2010, the Court criticized the
Turkey’s Court of Cassation for understanding them in the same way as before.
Thus Article 301 constituted a continuing threat to the exercise of the right to
freedom of expression. As was clear from the number of investigations and
prosecutions brought under this Article, any opinion or idea that was considered
offensive, shocking or disturbing could easily be made the target of a criminal
investigation by public prosecutors. Indeed, the safeguards put in place to
prevent the abusive application of Article 301 by the judiciary did not provide
a guarantee of non-prosecution because any change of political will or of
government policy could affect the Ministry of Justice’s interpretation of the
law and open the way for arbitrary prosecutions.
In view of that lack of forseeability, the Court concluded that the
interference with Akçam’s freedom of expression had not been “prescribed by
law,” in violation of Article 10.
NOTE: Under Articles 43 and 44 of the Convention, this chamber judgment is
not final. During the three-month period following its delivery, any party may
request that the case be referred to the Grand Chamber of the Court. If such a
request is made, a panel of five judges considers whether the case deserves
further examination. In that event, the Grand Chamber will hear the case and
deliver a final judgment. If the referral request is refused, the Chamber
judgment will become final on that day. Once a judgment becomes final, it is
transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution."
"Asbarez"
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