Freedom of Expression in Turkey: When Changes in the Wording Are Not Enough

The case of Dink v. Turkey recently confronted the European Court with the most brutal affront on freedom of expression: the assassination of a journalist. The Court found a violation of Article 2 (in its both substantive and procedural aspects) and of Article 10. At the basis of the freedom of expression violation was a Criminal Code provision (Article 301, former Article 159) which makes it an offense to “publicly denigrate Turkishness” (Türklük). Under this article, Turkish-Armenian newspaper editor, Fırat Dink, was put on trial. A few months after having been found guilty of denigrating Turkish identity, he was shot dead.

This case coincidentally came out when I was going over some of the legislative reforms Turkey has recently implemented, following numerous cases of violation of Article 10 for undue restrictions on applicants’ freedom of expression on subjects of public interest. Under then Article 8 of the Anti Terrorism Act (propaganda against the indivisible unity of the nation) and then Article 312 of the Criminal Code (incitement to hatred), many criminal proceedings were brought before national security courts against journalists and political leaders on account of statements concerning the Kurds.

Article 8 of the Anti Terrorism Act was abrogated as part of a reform package that entered into force between 2002 and 2003. Subsequently, a new Criminal Code came into force in 2005 replacing Articles 159 and 312 of the old Criminal Code with several new provisions, including Article 301. The new provisions, however, as pointed out in a Council of Europe Memo, “modified the wording of the old text while keeping its contents intact, in that the provisions concerning ‘the insulting of public bodies’ and ‘incitement to hatred and to break the law’ remain in the new code.” (see, 2007 memorandum presenting preliminary assessment of the situation as regards Turkey’s compliance with the ECHR requirements as set out in the Court’s judgments). The wide and vague terms of Article 301 of Turkish Criminal Code have been strongly criticized by organizations such as Amnesty International and Article 19. They have both called for the repeal of Article 301 given the risks of arbitrary criminalization of criticism it raises.

Turkey introduced further amendments to Article 301 in 2008 but are they now enough? The Parliamentary Assembly of the Council of Europe welcomed this amendment but deplored the fact that Turkey has not abolished Article 301. It further noted that criminal charges “have been brought against many journalists under the slightly revised Article 301, which still violates Article 10 of the European Convention on Human Rights.” (see, Recommendation 1897 (2010), para. 7).

On the whole, the Court’s Article 10 decision comes as no surprise. It is pretty much in line with its established case-law which allows little room for restrictions on political speech or debates over matters of public interest. According to the Court, when Firat Dink conveyed his resentment toward attitudes he regarded as a denial of the 1915 events, he was not but expressing his opinion on a matter of public interest in a democratic society. In his capacity as a journalist and actor of Turkish political life, the applicant raised questions concerning the Armenian minority. No evidence of incitement to violence, uprising or armed resistance was found in this case. The Court thus concluded that Fırat Dink’s conviction for denigrating Turkish identity did not answer any “pressing social need.”

Three particular aspects of the Court’s reasoning in this judgment are however worth highlighting. First, the European Court examined the way in which the Court of Cassation interpreted the notion of Turkish identity and concluded that, in reality, it had indirectly punished Mr. Dink for criticizing the State institutions’ denial of the view that the events of 1915 amounted to genocide. Second, and in connection with this finding, the Court emphasized that in a democratic society it is fundamental that debates over historical facts of certain gravity can take place freely. In this regard, it reiterated that seeking historical truth is an integral part of freedom of expression. Third, the European Court stressed that, in a case like the present one, the State must not just refrain from any interference with the individual’s freedom of expression, but is also under a “positive obligation” to protect her right to freedom of expression against attacks, including by private individuals. In view of the authorities’ failure to protect Fırat Dink against the attack by members of an extreme nationalist group and of the guilty verdict handed down in the absence of a “pressing social need”, the Court concluded that Turkey’s “positive obligations” with regard to Fırat Dink’s freedom of expression had not been complied with.

The case of Dink v. Turkey is ultimately a sad illustration of what may just sound obvious: only substantive changes in legislation and judicial practice can bring about real changes.