IPA REPORT ON FREEDOM TO PUBLISH AND UNRESTRICTED FLOW OF INFORMATION IN TURKEY

UNION INTERNATIONALE DES EDITEURS/INTERNATIONALE  VERLEGER/UNION INTERNATIONAL PUBLISHERS ASSOCIATION/UNION INTERNACIONAL DE EDITORES

IPA STATUS REPORT ON FREEDOM TO PUBLISH AND UNRESTRICTED FLOW OF INFORMATION IN TURKEY – UP TO 12 JULY 2004

I. SUMMARY:
IPA is very much concerned about: 1. the legal impediments to the practice of the right to freedom of expression in Turkey; 2. the current tendency of Turkish Security Courts to harass writers, journalists and publishers by putting them on trial more and more often, fining them or just postponing trials indefinitely; 3. the implementation problem.

IPA therefore calls upon the Turkish authorities to repeal all the incriminating legislation that impose heavy fines and prison sentences against writers and publishers solely for criticizing the Turkish State or tackling one of the many taboos that plague Turkish society (Position of the Military, Kurdish Question, Armenian Genocide, Kemalism, Women’s Liberation and Islamic Law): Articles 159, 169, 312 of the Turkish Penal Code, Article 7 of the Anti-Terror Law, Law 5816 (Protecting Atatürk’s memory), Article 81 of the Copyright Law. It is unacceptable to treat writers, journalists and publishers as potential terrorists/criminals and to judge them in the same courts as drug traffickers and/or real terrorists. State Security Courts (SSCs) should be abolished for real, in particular for creators and publishers of content. A name change is not enough.

While welcoming the legislative and constitutional changes in Turkey (e.g.: Repeal of Article 8 of the Anti-Terror Law), the IPA calls upon the Turkish authorities to implement the many reforms that were passed (e.g.: Trials still take place in abolished SSCs). Many changes have occurred in Turkey in terms of Freedom of expression, but seeing that a certain law article lifted after a great struggle returns under another name or just through practice is frustrating. Implementation is key and must not surrender to bureaucratic conservatism or any other hurdle.
II. IPA’s ACTIVITIES IN RELATION TO FREEDOM OF EXPRESSION IN TURKEY – Q4 2003 UP TO NOW

*  IPA trial observation mission (Istanbul SSC # 3, 1-4 December 2003) to attend Ragip Zarakolu’s trial in the “12 September regime under trial” case. Ragip Zarakolu acquitted;
*   At the request of the Turkish Publishers Association (TPA), joint IPA/International PEN protest letter to Turkish authorities regarding the latest draft of Press Law # 4757 (17 December 2003);
* At the request of TPA, 30 March 2004 joint letter with the International Booksellers Federation (IBF) against the “banderole system[1]”;
* Joint IPA/International PEN round tables on Civil and Political Rights in Turkey (7-8 April 2004, United Nations Commission for Human Rights (UNCHR), Geneva);
* Joint IPA/International PEN oral statement before the UNCHR under item 11 (civil and political rights). Subject: Freedom of expression in Turkey. Legislative changes welcomed. Continued harassment of publishers denounced.
*       27th Congress of the IPA (Berlin, 21-24 June 2004): Speakers of the Freedom to Publish session included: Müge Sökmen, Director of the Turkish WiPC, Director Metis Publishers: “FTP in Turkey”.

III. FREEDOM TO PUBLISH IN TURKEY IN 2004: THE LAW AND THE PRACTICE

1. 2003-2004 Freedom to Publish Figures
Last year, according to the report of the TPA, 43 books were banned and 37 writers and 17 publishers were put on trial. Main confiscation grounds were minority issues, obscenity, and the expression of opinions regarding the practices of the State and its officials. The Association states that this year fewer cases are opened against publishers and authors, and more trials result in acquittal.

2. Article 426 of the Turkish Penal Code: An amendment that underlines the implementation problem
In 2003, Article 426[2] of the Turkish Penal Code (TPC) was referred to to confiscate and ban books (as well as newspapers, magazines, articles, ads, pictures, films…) by Elfride Jelinek, Jonathan Ames, Pedro Almodovar or Irvine Welsh, on the grounds of obscenity. On the one hand, Istanbul Peace Penal Court # 1 ordered the confiscation of the book «Enough, Don’t Hurt My Skin» by Meltem Arikan (publisher: Everest Publishing House) in February 2004 following an order from the “Committee to Protect Minors from Obscene Publications» based on Article 426 of the TPC. On the other hand, Metis Publishing’s “Women’s slang dictionary”, which had been put to court for obscenity, was acquitted in June 2004. Article 426 has been amended so as to exclude scientific and artistic works and works of literary value from the scope of this article. But as the «Committee to Protect Minors from Obscene Publications», a body established under the Prime Ministry to work as official experts for judicial bodies in “obscenity cases” is not abolished, we ought to remain cautious. If official expertise remains in the hands of a committee linked to the government, the risk of political and/or ideological decisions continues[3].

3. State Security Courts (SSCs) abolished: A step forward?
SSCs succeeded Martial Law Courts in the aftermath of the 1980 military coup. In June 2004, the Turkish Parliament removed the SSC from Turkey’s Constitution. However, the authorities have failed to specify what would happen to trials already under way. Besides, it is unclear yet what courts will succeed the SSCs and what they will be named[4]. As recently as 15 June 2004, Abdurrahman Dilipak[5], journalist and author, was tried at a SSC for criticising some generals in an article entitled: «When the Generals are not obedient». His lawyers declared that, given the recent changes in the law, it was impossible for Mr. Dilipak to be judged before a SSC. As a consequence, the case was adjourned until 12 July 2004. The case would have been deferred to a civilian court in Bakirkoy.

The trial of Publisher Ragip Zarakolu, initially due to take place on 26 May 2004, was postponed to 10 September 2004 by a SSC. According to information received from Turkey, the mere presence of foreign observers[6] would have led to this decision. Publisher Ragip Zarakolu is being accused for having written an article questioning the goals of Turkish foreign policy in Iraq. Since the SSCs are now removed from Turkey’s Constitution, Ragip Zarakolu risks being judged and convicted in absentia (he will be attending the PEN Congress in Norway) by a non-existing court on 10 September 2004!

4. Article 312[7] of the Turkish Penal Code: An uncertain future
There have been several acquittals in Article 312 cases («incitement to hatred on the basis of class, religion or race»). This article has been used as a way to penalise writers and publishers who support minority issues. One example of this is the acquittal of Ömer Asan’s “Pontus Culture” (Belge Pub.). Gazi Çağlar’s «12 September is Being Judged» (Belge Pub.) was also acquitted on 3 December 2003. A TPA report states that the acquittals of Jwadie’s «Historical Roots and Development of Kurdish Nationalism» (İletişim), Naci Kutlay’s «Kurds in the eve of 21st Century» (Peri), Tori’s «Famous Kurdish Scientists and Intellectuals» (Sorun) and «Mustafa Barzani and Kurdish Liberation Movement» (Doz) show the positive climate surrounding the Kurdish issue further to the latest reforms.

Despite this obvious improvement, cases of «judicial harassment» continue: Ahmet Kahraman’s «Kurdish Resurrection» is still being tried and publisher Ahmet Onal’s acquittal in a 312 case was appealed by the Supreme Court of Appeal (book accused: “Alevism in Dersim”). Not only was the acquittal decision quashed by the Court of Appeal, but he was also brought to court on two new separate cases (Art. 159 TPC and Atatürk’s memory).

A very important step may have been taken in late June this year. Indeed, Attorney General for Supreme Court of Appeals would have publicly stated that this Article should be re-evaluated and advised that all cases tried under this Article should be freed unless there is an open and evident call for violence.

5. Article 159[8] of the Turkish Penal Code
This article still creates many freedom of expression problems in Turkey. Just to give one recent example, the re-print of Fikret Başkaya’s book «Articles against the Current» has been put to court under this article and the case will continue on 9 September 2004. Another case is that of publisher Ali Varis who is currently on trial for “Anatolia – from multiculturalism to monoculturalism”.

6. Minority issues
“Allegations of genocide against Armenians and Kurds” is a ground that is sometimes brought against writers and publishers. This is for instance the case of publisher Ali Varis and writer Mamo Bayram for the book entitled: “Kocgiri – Northwest Dersim”. This book is banned. Mr. Varis faces the risk of imprisonment.

The premises of Agos weekly newspaper, published in both Armenian and Turkish, were threatened by a group of extremist demonstrators on 26 February 2004 because of an article about Sabiha Gökçen, Turkey’s first woman pilot and Atatürk’s adopted daughter, which claimed that she had Armenian roots.

7. Protecting Atatürk’s memory
Having been found guilty of violating the 1951 Law protecting Atatürk’s memory (Law 5816) for an article he wrote in Milli Gazete, journalist Hakan Albayrak is currently serving a 15 months prison sentence. Herkül Milas’s book «Exile» based on the memories of the Greeks that were expelled from Anatolia during the compulsory exchange of populations between Greece and Turkey in 1924 was also tried for «insulting Atatürk’s memory».

8. Article 8 repealed, but Article 7 and Article 169 of TPC used instead
Article 8 of the Anti-Terror Law, prosecuting writers and publishers on the grounds of «advocating terrorist propaganda» was repealed last year. We had called for it. So we do welcome this. However, Article 7 of the same law and Article 169 of the TPC are used instead.  («Aiding and abetting a terrorist organisation»)[9].

Following the repeal of Article 8 of the Anti-Terror Law, Ismail Besikci, author of numerous books on Kurdish issues, and his publisher Unsal Ozturk of Yurt Publishers, applied to the State Security Court in Ankara on 30 July 2003 for a formal appeal for annulment of the court decision on the confiscation of 20 book titles[10] which had been confiscated under Article 8. However, the Ankara SSCs # 1 and 2 rejected two separate applications in December 2003 and January 2004 almost entirely, lifting the confiscation order only for 5 of the titles on the ground that “contents of the confiscated books still carry the elements of crimes defined in Article 312/2 TPC and Article 7 Anti-Terror Law”.

9. Law on the Intellectual and Artistic Properties (1951 Copyright Law # 5846): A potential tool for censorship
The Ministry of Culture administers the banderole system as set out in law # 4630 (2001) amending the 1951 Copyright law. The certification procedure entails that all works must be submitted to the Ministry of Culture along with authorising contracts signed by the creators of the works in order to obtain a hologram sticker for each work. These stickers must be affixed to all copies of the works before they can be put on the market. The Ministry of Culture has the discretionary power to provide the said banderoles or not, thus exercising a form of pre-publication control over publishing activities in Turkey. Moreover, the control chain extends to booksellers, which have been requested, at times, to close their shops if they did not display the said stickers on the books they sell. Finally, the criminal sanctions[11] provided for failure to affix compulsory stickers to books have met with legitimate hostility from publishers, newspapers and some authors.

10. New Press Law: A step forward to be tested
«Yeniden Özgür Gündem» newspaper has had to close down on 28 February 2004, after 545 days of publication. During that period, the newspaper was closed down for 4 days, the editor in chief was imprisoned for 25 months and the newspaper has had to pay very high fines. Recently, «Dersim» newspaper was put to court for publishing Kurdish articles, not because they were in Kurdish, but because they had not stated in their formal application that they would be using Kurdish! This case, launched in February 2004 by the Izmir Penal Court of First Instance against Ali Ekber Coskun[12], Dersim’s editor-in-chief, has been postponed first to 27 April and second to 29 June 2004. According to information received from Turkey, the case has been postponed again. It is unclear when the next hearing will take place. Since the Press Law has just been changed, the impact on this case is yet to be seen.

The Press Law was amended by Parliament on 9 June 2004. Changes include:

The inclusion of § 2 of Art. 10 of the European Convention of Human Rights into the law (Art. 3[13]),

The decrease of fines, in particular for “administrative failures”,

An improvement in relation to the disclose of sources,

Restrictions to confiscations of books or periodicals subject to a judicial decision.

The changes above are most welcome. The Public Prosecutor can only confiscate three copies of a published work. Moreover, should he fail to get a judge’s approval within 48 hours, confiscation is abolished. However, should a book or a periodical be confiscated according to the following law articles, then all of the copies can be confiscated (subject to a judge’s decision): Crimes against Atatürk (5816), Constitution Art. 174 Crimes Concerning Republican Revolutions, Turkish Penal Code 146/2, 153/1 and 4, 155, 311/1 and 2, 312/2 and 4, 312/a, Anti-Terror Law Art. 7/2 and 5[14].

[1] The banderole system has failed this far to combat book piracy effectively and is accused by our Turkish colleagues to be a potential tool for censorship.  For more, see paragraph on copyright law, p 3.

[2] “Whoever exhibits obscene books, newspapers, pamphlets, magazines, documents, articles, advertisements, pictures, illustrations, photographs, movie films or other items; or who puts on stage or show these things in theatres, cinemas or other public places, or who knowingly distributes or sells or suffers them, or the photograph records of the same nature, to be distributed or sold, or who in order to make profit or to distribute or exhibit such items, draws, illustrates, carves, manufactures, prints, or reproduces such items, or records them on photograph records, or imports, exports or transports them form one locality to another in Turkey, or suffers the foregoing activities to be performed, or who performs any transaction respecting any of the foregoing objects, or performs any transaction to facilitate the trade thereof, or who, in any manner, makes publicly known the ways of procuring, directly or indirectly, these documents or items, shall be imprisoned for one month to two years and shall be sentenced to pay a heavy fine.”

[3] The feminist novel “Stop Hurting my Flesh” by Meltem Arikan based on true child abuse, incest and domestic violence cases was labeled a threat to the Turkish family system by the «Committee to Protect Minors from Obscene Publications» and was thus confiscated by the Istanbul 1 Magistrate Criminal Court. This confiscation order took place after the 1st July 2003 amendment to Art. 426 of the TPC. The so-called “immoral parts” have been removed from the 4th reprint of the novel.

[4] “In a trial scheduled at SSC # 2 in Ankara, the name of the court was amended to the Ankara Serious Crimes Court in the case files.”, http://www.cascfen.org/news.php?nid=107&cid=15. Such a name for the successor of SSCs is questionable. Is the accused more likely to be convicted in the end? Is the Military still involved in the running of these Serious Crimes Courts?

[5] Abdurrahman Dilipak had been sentenced to 18 months in jail for inciting religious hatred and discrimination in an article published in a June 2002 issue of the «Cuma» magazine by Istanbul SSC # 2. Dilipak’s penalty was deferred because he was not expected to re-offend.

[6] Including Writers in Prison Committee (WiPC) Chair Eugene Schoulgin

[7] One who openly praises an action considered criminal under the law or speaks positively about it or incites people to disobey the law shall be sentenced from six months to two years of imprisonment and to a heavy fine.

[8] Those who publicly insult or ridicule Turkish national identity, the Republic, the Parliament, the Government, State Ministers, the Military, security forces of the State, or the Judiciary will be punished with a penalty of no less than six months (down from one year) security imprisonment. Another amendment ensures that expressions of thought undertaken solely for the purpose of criticism (and not insult) do not incur any penalties. Here, the assessment by the judge of the difference between criticism and insult leaves room for further abuse.

[9] The seventh package narrowed the scope of Article 169 of the Penal Code (“aiding and abetting terrorist organisations”) by removing the provision sanctioning “actions which facilitated the operation of terrorist organisations in any manner whatsoever”. The First Harmonisation Law amended the earlier version of the Article 7 of the Anti-Terror Law so that, in order to punish the person(s) who were considered to have committed the offence of “making propaganda for the terrorist organisation”, the person(s) should have “advocated the use of methods of terror.” The heavy fines were also increased tenfold, from “50 million to 100 million liras” to “500 million to 1 billion liras.” The Seventh Harmonisation Law further amended this article, by adding the word “violence” into the definition of the breach of Article 7: if person(s) “advocated the use of violence and other methods of terror.”

[10] 2003 WiPC Report on Book Bannings in Turkey (released: April 2004); 8 titles out of 23 according to the Human Rights Foundation of Turkey, April 2004 Report,http://www.tihv.org.tr/eindex.html

[11] Article 81 – as amended in March 2001 – provides that infringements of banderole-regime products should result in a prison sentence from 4 to 6 years and a heavy fine from 50 to 150 billion Turkish Liras. It does not distinguish among street sellers, distributors and manufacturers of illegal products

[12] http://www.tihv.org.tr/report/2004_02/febthought.html

[13] «The press is free. This freedom covers getting, disseminating, criticizing and interpreting information and creating a work. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.»

[14] These are articles on crimes against the unity of the state, urging the soldiers to disobey, provoking the public to commit a crime, advocating crime, and terrorising the public.