Originally published in NewropMag
June 06, 2006
By Houry Mayissian
90 years have passed since Ottoman Turkey committed genocide against its Christian Armenian subjects in 1915. Although several parliaments have recognized the Armenian Genocide and many historians have established that it is a historical fact, the Turkish government still refuses to acknowledge it. It has, in the past 90 years, implemented several methods to deny the genocide ever happened. The latest of these measures was the recent criminalization of the acknowledgement of the Armenian Genocide in the new Turkish Penal Code, which took effect on June 1.
As part of the several reforms it adopted during the last few years, Turkey devised a new Penal Code in September 2004. The adoption of the code came after much debate and a bitter row between Turkey and the European Union over a controversial article criminalizing adultery. It was a must for Ankara to adopt a new code: the European Commission threatened that it would advise EU leaders not to start accession talks with Turkey unless it adopts the new code. The code was adopted without the article criminalizing adultery, and the European Commission welcomed the move*.
Another controversial article, however, article 305 did not receive much attention and was adopted as part of the Penal Code. The article “threatens authors with jail sentences over statements that are construed by government officials to undermine Turkish ‘national interests'”, and its explanatory report mentions as examples of such statements recognition of the Armenian Genocide and calls for the withdrawal of the Turkish Army from Cyprus.
The full text of article 305 is as follows:
Action against the fundamental national interests
1) A citizen who either directly or indirectly accepts from a foreign individual or organization pecuniary benefits for himself or for another person in return for engaging in activities against fundamental national interests or for that reason shall be sentenced to imprisonment for a term of three to ten years[…]. The same penalty shall be imposed on the person who provides the benefit or makes the promise.
2) If the act is committed during wartime or benefit has been given or promised in order to spread propaganda through the medium of the press and media, the penalty shall be increased by half.
3) Except in cases where the act is committed during wartime, the prosecution of the offence shall be subject to the authorization of the Minister of Justice.
4) Within the meaning of the present article, fundamental national interests shall mean independence, territorial integrity, national security and the fundamental qualities defined in the Constitution of the Republic.
The explanatory report of the article clarifies that “the article protects, in general, the fundamental national interests and punishes those who acquire benefit by making actions against them.” The explanatory report also illustrates each paragraph of the article and gives further explanations on how they should be interpreted. The interpretation of the second paragraph of the article is as follows:
“Furthermore, according to this paragraph in case money or benefit or promises have been accepted for conducting propaganda via publications and the Media, the penalty will be increased. For example such as the conducting of propaganda via publications and the Media, by accepting money or benefit or promises for the withdrawal of the Turkish troops from Cyprus, or for accepting a solution that is against Turkey on this issue, or for the genocide of the Armenians at the end of World War I, aimed only at harming Turkey, contrary to the historical realities.”
Therefore, the article proposes punishments for those who specifically conduct “propaganda” in the media and other publications for the withdrawal of the Turkish army from Cyprus and recognition of the Armenian Genocide “by accepting money or benefit or promises.” Furthermore, the article dismisses affirmation of the Armenian Genocide as propaganda and legalizes its denial, by claiming that such statements are “aimed only at harming Turkey” and are “contrary to the historical realities.”
Current Status of Article 305
The new Turkish Penal Code was supposed to enter into force on 1 April 2005, but in the face of fierce objections to it by Turkish journalists, lawmakers agreed to postpone its implementation till June in order to introduce certain amendments (6). It seems, however, that some of the amendments Turkish lawmakers adopted aims “to introduce even greater restriction.” (6)
In fact, the correspondent of Irish Times in Istanbul reported on May 5 that just hours before a revised draft of the penal code was presented to the parliament, three MPs succeeded in extending the remit of article 305, initially applicable only to Turkish citizens, to include “foreigners in Turkey.”(7) Amnesty International issued an action alert on May 13, expressing concern that the new version of the Turkish Penal Code “may be used to unnecessarily restrict the freedom of expression.” (6) Amnesty International cited article 305 as well as the amendment proposed to it as examples of breaches of freedom of expression.
Just days before the law was supposed to take effect on June 1, the Turkish parliament introduced amendments in response to wide criticism by the media. Some clauses restricting media freedom were amended, but there are still restrictions that will raise eyebrows in Western Europe: criticizing some state institutions is still a criminal offence, as is publishing material deemed “contrary to fundamental national interests” – such as suggesting that the killings of Armenians in World War I was a genocide.” (8)
The Turkish Penal Code thus entered into force on June 1. It is notable, however, that the code entered into force in its original version, as President Ahmet Necdet Sezer has not yet approved the last-minute amendments.(9)
(1) Lungescu, O. Turkey’s quest to join Europe. Retrieved 01-01-2005.
(2) EU demands new Turkish Penal Code. Retrieved 01-01-2005.
(3) The new Turkish Penal Code would criminalize recognition of the Armenian Genocide. Retrieved 01-01-2005.
(4) Haraszti, M. Review of the Draft Turkish Penal Code: Freedom of Media Concerns. Retrieved 19-05-2005.
(5) Criminalization by Turkey of the Affirmation of the Armenian Genocide and of the request for a withdrawal of the Turkish troops from Cyprus. Retrieved 01-01-2005.
(6) Turkey: Freedom of expression/torture/prisoners of conscience. Retrieved 19-05-2005.
(7) Birch, n. Turkey extends ban on alluding to genocide. Retrieved 19-05-2005.
(8) Dymond, J. Turkey adopts Penal Code reforms. Retrieved 27/05-2005.
(9) EU-sought penal code takes effect in Turkey despite criticism. Retrieved 02-06-2005.