Pamuk is to be tried on a charge
of “insulting Turkishness” under article 301 of the criminal code at
Şişli Primary Court No. 2 in Istanbul. Turkey’s most widely known
novelist with works translated into thirty-five languages, Pamuk was
indicted for telling the Swiss magazine Das Bild in February that,
“Thirty thousand Kurds and one million Armenians were killed in these
lands.” If convicted, he could be imprisoned for up to four years.
“The trial of Orhan Pamuk will show the world which direction Turkish
justice is heading,” said Holly Cartner, Europe and Central Asia
director at Human Rights Watch. “The right signal would be prompt
acquittal and a strong statement from the bench affirming that Turkish
law protects freedom of expression.”
Turkey has made significant progress in the protection of freedom of
expression since the early 1990s when hundreds of citizens were
imprisoned for their nonviolent opinions, and minority languages such as
Kurdish were forbidden by law. To Human Rights Watch’s knowledge, no
prisoners of opinion are currently jailed.
However, many restrictions on freedom of expression persist in Turkey.
In recent months many writers have faced trial, and some have been
convicted for similar charges of insulting the army, insulting the
government or insulting the memory of Kemal Atatürk, the founder of the
Turkish republic. Under the new criminal code, Turkish courts have
acquitted some writers, but have sentenced others to fines and terms of
imprisonment, currently awaiting appeal.
“Pamuk’s conviction or a postponement of his trial would signal a
serious reverse to recent reforms in Turkey,” Cartner said.
Last year the Turkish parliament amended the constitution to make
international human rights treaties applicable in Turkish domestic law.
The Council of Europe and some European Union member states have been
helping to train Turkish judges and prosecutors in the jurisprudence of
the European Court of Human Rights. The European Court has clearly ruled
that the right of free expression includes the right to criticize public
institutions in very strong terms.
The European Union enlargement commissioner, Olli Rehn, has expressed
“serious concern” about the Pamuk case. He even suggested that it may
have been staged as a deliberate challenge to recent reform trends.
“From the world-renowned poet Nazım Hikmet in the 1930s to Orhan Pamuk
today, Turkish judges have prosecuted and imprisoned the country’s
greatest writers,” said Cartner. “A Turkish judge needs to make a really
strong declaration to prove that those days are finally over.”
Numerous writers, politicians and human rights activists have been
brought before the courts under article 301 (insulting “Turkishness” or
the organs of state) and similar criminal provisions related to insult.
- Hrant Dink, editor of Agos magazine, and Sehmus Ülek, vice-president of the Mazlum-Der human rights organization, are also currently on trial for “insulting Turkishness” under article 301.
- Ersen Korkmaz, owner of Demokrat Iskenderun newspaper, is being tried for “insulting the government” under article 301.
- Fatih Taş, owner of the Aram publishing house, is charged with “insulting Turkishness and the security forces” under article 301 of the Turkish criminal code, and with “insulting the memory of Kemal Atatürk” under Statute 5816, the law to protect Atatürk.
- Ragip Zarakolu, owner of the Belge publishing house, is on trial for “insulting Atatürk” under Law 5816, and “insulting the armed forces” under article 301.
On December 2, 2005 five prominent newspaper journalists—Ismet Berkan,
Murat Belge and Haluk Şahin of the daily Radikal, together with Erol
Katırcıoğlu and Hasan Cemal of the daily Milliyet—were indicted under
article 301 for criticizing a court’s decision in September to halt a
conference on the destruction of the Armenian population of Anatolia in
1915. The conference went ahead later that month in Istanbul’s Bilgi
University.
Each of the above individuals was charged for nothing more than the
peaceful expression of his opinions.
If the Turkish courts fail to protect free speech in the Pamuk trial,
the current government led by the Justice and Development party (AKP)
may try to deny its own responsibility in this matter by pleading that
it has no influence over independent courts. However, the government has
had a role in allowing this prosecution to be opened. Despite calls from
international and domestic human rights organizations, the AKP
government failed to repeal criminal code articles that infringe free
speech when adopting a new criminal code in June 2005. These include
article 299 (insulting the president), article 300 (insulting the flag)
and article 301 (insulting Turkishness, or the organs of state).
Moreover, the Turkish Ministry of Justice has failed to ensure that the
annual performance review of judges and prosecutors includes an
assessment of their knowledge of and compliance with international law.