1 Turkish Penal Code (Turk Ceza Kanunu / TCK), Law no: 5237 of 26 September 2004.Google Scholar

2 See Türkan Y. Sancar, TÜRKLÜĞÜ, CUMHURİYETİ, MECLİSİ, HÜKÜMETİ, ADLİYEYİ, BAKANLIKLARI, DEVLETİN ASKERİ ve EMNİYET MUHAFAZA KUVVETLERINİ” LENEN TAHKİR ve TEZYİF SUÇLARI (ESKİ TCK M. 159/1 - YENİ TCK M. 301/1-2) 46 (2006).Google Scholar

3 Law no: 765 of 1 March 1926.Google Scholar

4 Law no: 3038 of 11 June 1936.Google Scholar

5 Law no: 3531 of 29 June 1938.Google Scholar

6 Law no: 4956 of 20 September 1946.Google Scholar

7 Law no: 235 of 5 January 1961.Google Scholar

8 Law no: 4744 of 6.2.2002 and Law no: 4771 of 3 August 2002. These laws were adopted as a result of the efforts for EU membership aimed at harmonizing Turkish laws with EU standards. The first one is known as the 1st Ad?ustment Law/Package, while the latter as the 2nd Ad?ustment Law/Package. See Türkan Yalçın Sancar, Türk Ceza Kanunu'nun 159. ve 312. Maddelerinde Yapılan Değişikliklerin Anlamı, 52 Ankara Üniversitesi Hukuk Fakültesi Dergisi (AÜHFD) 88, 88–89 (2003).Google Scholar

9 Law no: 4963 of 30 July 2003.Google Scholar

10 The translation of the article was as follows in an OSCE document:Google Scholar

(1) A person who explicitly insults being a Turk, the Republic or Turkish Grand National Assembly, shall be imposed a penalty of imprisonment for a term of six months to three years.Google Scholar

(2) A person who explicitly insults the Government of the Republic of Turkey, the judicial bodies of the State, the military or security organisation shall be imposed a penalty of imprisonment for a term of six months to two years.Google Scholar

(3) Where insulting being a Turk is committed by a Turkish citizen in a foreign country, the penalty to be imposed shall be increased by one third.Google Scholar

(4) Expression of opinions with the purpose of criticism does not require penalties.Google Scholar

See Haraszti, Miklos, Review of the Draft Turkish Penal Code: Freedom of Media Concerns (2005), 20 November 2008, available at: http://www.osce.org/documents/rfm/2005/03/14223_en.pdf, last accessed 26 November 2008. For another translation, see Edward Grieves & Vahit Biçak, Türk Ceza Kanunu 165–166 (2007).Google Scholar

11 Orhan Pamuk was tried because he said that “30,000 Kurds and one million Ottoman Armenians were killed in Turkey.” The case was then dropped by the court. Elif Şafak was tried because of her expressions in her book “Father and Bastard.” She said “I am the grandchild of genocide survivors who lost all their relatives to the hands of the Turkish butchers in 1915, but I myself have been brainwashed to deny the genocide because I was raised by some Turk named Mustafa.” She was acquitted at the first hearing, as there were no elements of the crime envisaged in article 301. For a number of well-known cases emanating from article 301 and their summaries, see Document - Turkey: Article 301: How the Law on “Denigrating Turkishness” Is an Insult to Free Expression, Amnesty International, 10 May 2008, available at: http://www.amnesty.org/en/library/asset/EUR44/003/2006/en/dom-EUR440032006en.html, last accessed 26 November 2008.Google Scholar

12 According to the Turkish Minister of Justice, 1,189 people were being taken before a court by the first quarter of 2007 alone for article 301 violations. The number of total cases in the same period was 744. See TBMM TUTANAK DERGİSİ, 23. Dönem 2. Yasama Yılı 81. Birleşim, 25 March 2008.Google Scholar

13 The attitude of opposition parties was patterned. Nationalists stated positively that they were against any change while the Kurdish-oriented Democratic Society Party strongly espoused abolition of the article. Similar views were also available among the Turkish jurists. See Türkiye Barolar Birligi (Turkish Bar Association), TCK 301 35–36 (2007).Google Scholar

14 The need to bring Turkish legislation in line with European standards was emphasized in The European Commission's Progress Report on Turkey. See Commission of the European Communities, Commission Staff Working Document, Turkey 2006 Progress Report (November 2006). According to the Report, certain provisions of the TPC, especially article 301, have been used to restrict the expression of non-violent opinions. See p. 14–15.Google Scholar

15 Law no: 5759 of 30 April 2008. Published in the Official Gazette [Resmi Gazete] on 8 May 2008.Google Scholar

16 According to one author, the crimes regulated by articles 159 and 301 are generally characterized as “political crimes.” See Köksal Bayraktar, Siyasal Suç 103 (1982).Google Scholar

17 The interpretation of article 301 by the Turkish judiciary has been sharply criticized by many authors. According to one of them, article 301 functioned as a “political weapon of the judiciary against freedom of expression.” See Erol Önderoğlu, 301: ifade Özgurlüğune Karşı Yargının Politik Silahı, 65 Ankara Barosu Dergisi 19, 19–23 (2007).Google Scholar

18 The key word in the article, aşagılamak was translated into English differently by the authors. Apart from denigration, the words “humiliate,” “insult,” “deride” and “degrade” are also used. See, inter alia, Lester, Anthony, Redefining Terror, Index on Censorship 103, 105 (2007); Smith, Thomas W., Leveraging Norms: The ECHR and Turkey's Human Rights Reforms, in Human Rights in Turkey, 262, 272 (Zehra F. Kabasakal Arat); Gabriel Noah Brahm Jr., Reading City of Quartz in Ankara: Two Years of Magical Thinking in Orhan Pamuk's Middle East, 11 Rethinking History 79, 85 (2007); Grieves & Biçak (note 10), 165. However, the word aşağılamak is not fully synonymous with the words tahkir and tezyif, which were used in article 159 of the former TPC. This will be explained below.Google Scholar

19 TBMM, 22. Donem, Yasama Yılı 2, Sıra Sayısı 664, 688.Google Scholar

20 This view is supported by a decision of the Turkish Supreme Court of Appeals: “It was seen indispensable to safeguard the Republic‥ against any attack in terms of common good and it has been added to article 159 for that reason. “The Republic” and the word “State” are synonymous. Therefore, denigration of the state is, on account of its character, constitutes the denigration of the Republic”. CGK, E. 1998–9/70, K. 1998/156, judgment of 5 May 1998.Google Scholar

21 See İzzet Özgenc, Türk Ceza Kanunu Gazi Şerhi (Genel Hükumler) 1075 (2006).Google Scholar

22 Doğan Soyaslan, Ceza Hukuku Özel Hükümler 666–667 (1999). Similarly, it is obvious that “Turkishness” is related to a component of the state, the “people” of the state, and corresponds to the “Turkish nation.” See Sancar, supra note 2, 83–84.Google Scholar

23 According to article 291 of the Italian Penal Code, a person who publicly denigrates the Italian Nation shall be sentenced a penalty of imprisonment for a term of between one year and three years. This crime was added to the Italian Penal Code in 1939.Google Scholar

24 See Yargıtay Ceza Genel Kurulu, E.2006/9-169, K. 2006/184, judgment of 11 July 2006.Google Scholar

25 See Sancar, supra note 2, 70–86.Google Scholar

26 During the drafting stage of the amendment, it was planned that the President of the Republic be authorized for this approval instead of the Minister of Justice. Later, considering that such a duty was incompatible with the position of the President of the Republic, the Minister of Justice was authorized. The Turkish Head of State, according to article 101 of the Turkish Constitution, has to remain impartial. Although article 101 implies that his impartiality is mainly in the political area, it was supposed that his involvement with judicial affairs would shade his impartiality.Google Scholar

27 Law no: 3038 of 11 June 1936.Google Scholar

28 Akçakoca, Amanda, Ell-Turkey Relations 43 Years on: Train Crash or Temporary Derailment?, European Policy Centre, EPC Issue Paper No. 50 (2006) 13.Google Scholar

29 For this view, see, for example, Hakeri, Hakan, Yeni Ceza Kanunu'nda ve Yargıtay'ın Yeni Kararlarında Düşünceyi Açıklama Özgürlüğı'ne Aykirılıklar, 15 Hukuk DünyasI 9, 10 (2005).Google Scholar

30 Sancar, supra note 2, 168.Google Scholar

31 Yaşar Salihpaşaoğlu, TürKiye'de Basin Özgürlüğü 182 (2007).Google Scholar

32 Article 341, for example. See Id., 182.Google Scholar

33 Sancar, Mithat, Temel Haklarin Yorumu 324–325 (1995).Google Scholar

34 Id., 330.Google Scholar

35 Eur. Court H.R., Müller and Others v. Switzerland, Judgment of 24 May 1988, Series A no. 133, para. 29. See also Sunday Times v. the United Kingdom (no. 1), Judgment of 26 April 1979, Series A no. 30, para. 49; Hertel v. Switzerland, Judgment of 25 August 1998, Reports of Judgments and Decisions 1998-VI, para. 35.Google Scholar

36 Eur. Court H.R., Müller and Others, para. 28.Google Scholar

37 Eur. Court H.R., Castells v. Spain, Judgment of 23 April 1992, para. 46.Google Scholar

38 See Eur. Court H.R., Handyside v. the United Kingdom, Judgment of 7 December 1976, Series A no. 24, para. 49. See also Lingens v. Austria, Judgment of 8 July 1986, Series A no. 103, para. 41; Jersild v. Denmark, Judgment of 23 September 1994, Series A no. 298, para. 37; Zana v. Turkey, Judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, para. 51.Google Scholar

39 See, Yargıtay Ceza Genel Kurulu, E. 1976–9/247, K. 1976–258, Judgment of 24 May 1976.Google Scholar

40 See, Yargıtay 8. Ceza Dairesi, E. 2003/2930, K. 2004/5686, Judgment of 22 June 2004.Google Scholar

41 Bakırköy 2. Ağır Ceza Mahkemesi, Judgment of 20 January 1997. See Sancar, supra note 2, 217. For other similar decisions of Turkish Court of Appeals, see also p. 218.Google Scholar

42 Yargıtay Ceza Genel Kurulu, E.2006/9-169, K. 2006/184, Judgment of 11 July 2006.Google Scholar

43 Id. For a similar decision of the Court of Appeals, see Yargıtay Ceza Genel Kurulu, E. 20048–201, K. 200530, Judgment of 15 March 2005 and the dissenting opinion thereafter.Google Scholar

44 For an example of articles 10 and 11 of the European Convention of Human Rights, see Yargıtay 9. Hukuk Dairesi, E. 2004/28345, K. 2004/24792, Judgment of 15 September 2004. In this case, the closure of a trade union, Eğitim-Sen was demanded because of the opinions declared in its statute. The Court of Appeals concluded that non-closure of the trade union by the court of first instance was unlawful. Eğitim-Sen survived by extracting the controversial part of the statement from the statute.Google Scholar