Articles of condemnation
01 Aug 07

Not even the murder of the key defendant has deflected the determination of an Istanbul prosecutor to pursue an Armenian-Turkish newspaper in the criminal court. The case against Agos continues to embarrass a Turkish government pledged to re-invigorate stalled negotiations for entry into the European Union after a resounding general election victory.

That Hrant Dink was no longer alive to answer charges of ‘defaming Turkishness’ was acknowledged at a hearing this June this year, nearly six months after the journalist was gunned down in front of the offices of Agos, the newspaper he helped to establish. The prosecution is still demanding sentences of up to three years imprisonment for the weekly’s proprietor Serkis Seropyan and Mr Dink’s son, Arat, who, as responsible editor, reprinted the actionable interview with Hrant Dink for Reuters in which he spoke of the genocide of Armenians in the Ottoman Empire in 1915.

The proceedings against Mr Dink’s successors will increase pressure on the new Turkish government to amend or abolish a raft of legislation that has served to isolate state institutions from criticism and stifle debate about the country’s own history.

Tayyip Erdogan of the Justice and Development Party (AKP) emerged from the recent elections as the first prime minister in over 50 years to win a second term in office with a larger share of the popular vote. Mr Erdogan is now expected to use this mandate to select a new president who will cooperate with his party’s legislative agenda. The outgoing president, Ahmet Nejdet Sezer, had used his power of veto to stymie a government he believed was trying to impose an Islamic agenda on the very secular Turkish establishment. Mr Erdogan’s supporters say he is simply trying to make an aloof bureaucracy more accountable.

In the wake of his electoral victory, Mr Erdogan has floated proposals for a new constitution to replace the document bequeathed by martial authorities after the 1980 military coup. It is still not clear however whether the government will seek the abolition of statutes which use criminal courts to protect state institutions from defamation. The outgoing minister for justice, Cemil Cicek, has defended in principle the existence of statutes like the notorious Article 301, which makes it an offence to insult ‘Turkishness’, citing similar European legislation used to protect core institutions from lèse-majesté.

Ironically, 301 is a recent law – a response to European disapproval of Article 159 of the penal code, which provided stiffer penalties for similar offences. Whereas 159 required the assent of the minister for justice to initiate proceedings, 301 cases can be instigated by individual prosecutors, with the government unable to provide guidelines or in anyway interfere. The result is that certain courts have become ‘ultra-nationalist’ hot spots where litigation-happy prosecutors bring cases against prominent individuals before sympathetic judges.

At present, the laws draw a distinction between ‘criticism’, which is protected by a constitutional commitment to free speech, and ‘insult’, which is not. In practice, most cases result in acquittal – the real punishment being the harassment of being subjected to a protracted set of hearings. The Turkish criminal system is based on the French magisterial system – cases proceed as investigations with the court convening at infrequent intervals to evaluate progress. A complaint by a private individual can be enough to initiate this protracted process. This is in contrast with the Anglo-Saxon system, where a trial only begins after the prosecution has assembled a case which it believes will result in a conviction.

Hrant Dink was convicted under Article 301 in October 2005. It was undoubtedly that trial which attracted the attention of his young assassin, who confessed that he was avenging Mr Dink’s (misreported) ‘loathing’ of the ‘Turkishness of his blood’. That murder has prompted the police to provide protection for others charged under 301.

‘In normal circumstances you would not expect the Agos case to end in a conviction,’ said Agos columnist Aydin Engin, who was himself acquitted under article 288 of insulting the judiciary at the June hearing. On 18 July the court met again but was adjourned to consider the defence argument that the judge in the case could no longer be regarded as impartial having already presided over past cases involving the Dink family. The trial will continue on 11 October.

By Padraig Reidy

Padraig Reidy is the editor of Little Atoms and a columnist for Index on Censorship. He has also written for The Observer, The Guardian, and The Irish Times.