Originally published in NewropMag
June 08, 2006
By Houry Mayissian
Vagueness in the article
The problem with article 305 of the new Turkish Penal Code is not only the limitations it imposes on freedom of expression; the law is flawed in itself, because it is vague. In its November 13th 2004 issue, The Economist writes: “… an article of the new penal code approved in September … provides for up to ten years’ jail for those who engage in unspecified ‘activities’ against the ‘national interest’. What might such activities be?” (1) The article mentions the examples included in the explanatory report and questions their validity.
The fourth paragraph of article 305 specifies that the term fundamental national interests means “independence, territorial integrity, national security and the fundamental qualities defined in the Constitution of the Republic.” (2)
The explanatory report mentions that the function of this last paragraph is to serve as a “limiting criterion”, because “the concept of ‘fundamental national interests’ may be very wide both from the point of view of its content and its scope.” The definition given for “fundamental national interests” is unclear. Furthermore, even though several limiting criteria are mentioned in the law, the explanatory report in no way illustrates how affirmation of the Armenian Genocide would jeopardize any of the above-mentioned criteria. Moreover, the law talks about benefits and promises, but does not mention or clearly define what such benefits might be.
A Violation of freedom of expression
In addition to being flawed, article 305 of the new Turkish penal code constitutes a serious violation of freedom of expression, an essential pillar for a democratic society. By legalizing denial of the Armenian Genocide the Turkish Government not only distorts historical realities, it also prohibits discussion and affirmation of the fact of the Armenian Genocide.
The document this article depends upon to make its argument is the European Convention for the Protection of Human Rights for several reasons: Turkey adopted the new penal code as a condition by the European Union to start accession talks; Turkey has ratified this document in 1954 (3); the European Commission and the Parliament have regarded the article in violation of the said convention.
Article 10 of the European Convention for the Protection of Human Rights states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” (3) Thus, by banning affirmation of the Armenian Genocide, the Turkish Government infringes on the freedom to receive and impart information and ideas, which violates the above article ratified by the Turkish government itself. Moreover, the article casts doubt on how seriously the Turkish government respects the conventions of the European Union, a body it has been trying to join for long.
Having said the above, it should be acknowledged that in no country in the world absolute freedom of expression can be ensured. Furthermore, the concept of freedom of expression in itself is broad and subject to many interpretations. For this purpose, in addition to the above Convention, I also base my critique of article 305 on the theory of Clear and Present Danger.
(1) Haunted by the past. The Economist (2004, November 13). 34-37
(2) Haraszti, M. Review of the Draft Turkish Penal Code: Freedom of Media Concerns. Retrieved 19-05-2005.
(3) Human Rights Watch. (1999). Violations of free expression in Turkey