Turkey legalizes the denial of the Armenian Genocide – Part V

Originally published in NewropMag
June 09, 2005
By Houry Mayissian

The Clear and Present Danger test, as it is called, was first proposed in 1919 by Justice Oliver Wendell Holmes Jr. in his interpretations of the First Amendment of the United States’ Constitution (1). In order to determine whether the speech at hand is constitutional, “the Clear and Present Danger test asked not whether the words had a bad tendency but rather ‘whether the words used are used in such circumstances and are of such a nature as to create clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.'” (1)

Advocates of this theory of freedom of expression believe that it is “the best available judicial test for striking a proper balance between protection of the marketplace of ideas and the need to protect the national security and the publics order.” (2) The opponents to this theory, on the other hand, argue that the test is “open to widely varying interpretations” and provides “little or no protection to radical speech in times of political stress” (2). While this argument makes a logical point, I personally believe, that if exercised with care, the above test would be efficient in both securing freedom of expression to the citizens of a country and protecting its national security, especially in times of war.

Although the Clear and Present Danger test is an interpretation of the First Amendment of the US Constitution, it can be applied to other countries as a means of regulating government intervention in the right to freedom of expression. Furthermore, using this test in the case of article 305 is appropriate, because the article itself is based on the need to protect “fundamental national interests.” Thus, based on this concept, article 305 would have been justifiable if recognition of the Armenian Genocide truly constituted a “clear and present danger” for Turkey. Not only the recognition of the Armenian Genocide constitutes no such danger to Turkey, its denial threatens one of the country’s basic national interests as announced by Turkey itself: its membership to the European Union. Recent developments show that the recognition of the Armenian Genocide by Turkey will be one of the issues on the agenda of accession talks. In fact, French Foreign Minister Michel Barnier told the French RTL radio in December that France will include the issue of the Armenian Genocide in the accession talks that are due to start with Turkey in October 2005 (3). Similar statements by other EU officials and member countries indicate that denial of the Armenian Genocide might in fact become a headache, causing more danger to Turkey, than its recognition.

In conclusion, the adoption of article 305 of the Turkish Penal Code has no justification; the argument that recognition of the Armenian Genocide is a threat against national interests has no basis. In addition, the article contains serious shortcomings that might lead to its abuse by the government. The article has been criticized by the European Parliament and Commission, as well as a number of non-governmental organizations and has been regarded as an infringement on freedom of expression. The article is not the only attempt by the Turkish Government to deny the Armenian Genocide, but its significance lies in the fact that it legalizes this denial. Finally, the article violates the European Convention for the Protection of Human Rights, a document Turkey has ratified and is obliged to respect. For all the above reasons, the explanatory report citing the Armenian Genocide example (this paper has not dealt with the Cyprus issue) should be deleted.

(1) Kersch, K. I. (2003). Freedom Of Speech: Rights and Liberties Under The Law. California: ABC-CLIO
(2) Cohen, J. & Gleason, T. W. (1990). Social Research in Communication And Law. California: Sage Publications
(3) France to Include “Armenian Genocide” in Turkey’s EU bid talks: FM. Retrieved 19-01-2005.


Turkey legalizes the denial of the Armenian Genocide – Part IV

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

Turkey legalizes the denial of the Armenian Genocide – Part III

Originally published in NewropMag
07 June, 2005
By Houry Mayissian

On 4th October 2004, the office of US Congressman Frank Pallone (D-NJ), who also is the co-chairman of the Congressional Caucus on Armenian Issues, informed in a press release that the congressman had urged the State Department to condemn article 305 of the Penal Code (1). The congressman wrote a letter to the Secretary of State, Colin Powell, urging him to condemn the article and pointing out that its adoption is “an imprudent step on the part of a nation that is desperately trying to establish an image of having a free and democratic society.”

Given that the new penal code was adopted by demands from the European Union and considered “one of the key elements in the country’s bid to start membership negotiations with the European Union” (2). The European Union also made references to article 305 in several reports on Turkey’s membership.

On 30th November 2004, the Foreign Affairs Committee of the European Parliament adopted a proposal for a resolution on the “2004 regular report and the recommendation of the European Commission on Turkey’s progress towards accession.” In its report the Foreign Affairs Committee adopted an amendment welcoming the reform of criminal procedure, but considered that “article 305 of the new Turkish penal code which sanctions alleged ‘threats to fundamental national interests’ and the explanatory statement of which targets freedom of expression, in particular related to the Cyprus and Armenia issues, is incompatible with the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms” (3). The Committee called for the repeal of the article. In December, prior to the European Union summit that would give the green light for accession talks with Turkey, the European Parliament adopted the parliamentary report on Turkey’s progress toward accession. In its report, the Parliament included the amendment mentioned above (4).

The OSCE representative on Freedom of the Media Haraszti, described article 305 in his May 2005 review as a de facto censorship provision, given that it can be used to punish any speech that is not in conformity with the views of the Government on the issues listed in paragraph 4 (5). Referring to the clause about receiving benefits for spreading propaganda, Haraszti pointed out that the article does not “exclude any interpretation of journalistic salaries as pecuniary benefits for spreading propaganda.” (5)

The article was also criticized by Reporters Sans Frontières (RSF), the Writers in Prison Committee (WiPC) of International PEN, the International Publishers Association (IPA) and Amnesty International. RSF considered that article 305 “specifically targets freedom of expression” (6). The IPA sent letters to the EU Dutch presidency, Romano Prodi (then president of the European Commission) and Jose-Manuel Barroso, its new president, calling on them to urge the Turkish Government to abandon the criminalization of the recognition of the Armenian Genocide (7). IPA considered the article a move that jeopardizes freedom of expression and the freedom to publish. IPA and PEN issued in December a joint guide entitled “New Turkish Penal Code: A Long Way to Freedom of Expression”. In the guide, the organizations called for the repealing of the explanatory report of article 305 that includes the examples on the Armenian Genocide and the withdrawal of Turkish troops from Cyprus. The organizations pointed out:

“Allegations of genocide against Armenians and Kurds is a ground that is sometimes brought against writers and publishers. This was for instance the case of publisher Ali Varis and writer Mamo Bayram for the book entitled: ‘Kocgiri – Northwest Dersim’. This book was banned. Mr. Varis faced the risk of imprisonment. We are not sure whether the case is still pending or not. However, Article 305 of the New Turkish Penal Code will provide prosecutors with a new legal device to prevent an open and democratic debate from taking place in Turkey on two fundamental issues: the Armenian Genocide and the presence (occupation) of Turkish troops in Cyprus” (8).

Amnesty International issued an action alert on May 13 considering that the imposing of criminal penalty for statements that acknowledge the Armenian Genocide as a historical fact or call for the withdrawal of Turkish troops from Cyprus “would be a clear breach of international standards safeguarding freedom of expression.” (9)

(1) Pallone urges state department to condemn new Turkish Penal Code punishing Turks who object to government’s policy toward Armenia & Cyprus. Retrieved 14-12-2004.
(2) Lungescu, O. Turkey’s quest to join Europe. Retrieved 01-01-2005.
(3) Turkey: The Foreign Affairs Committee against the European Parliament. Retrieved 02-01-2005.
(4) European Parliament calls on Turkey to explicitly recognize the Armenian Genocide. Retrieved 02-01-2005.
(5) Haraszti, M. Review of the Draft Turkish Penal Code: Freedom of Media Concerns. Retrieved 19-05-2005.
(6) Turkey still far from European standards of Press Freedom. Retrieved 02-01-2005.
(7) IPA calls for amendment to Penal Code to allow for free expression on Armenian genocide. Retrieved 02-01-2005.
(8) New Turkish Penal Code: A long way to freedom of expression. Retrieved 02-01-2005.
(9) Turkey: Freedom of expression/torture/prisoners of conscience. Retrieved 19-05-2005.

Turkey legalizes the denial of the Armenian Genocide – Part II

Originally published in NewropMag
June 06, 2006
By Houry Mayissian

One of many Turkish Efforts to Deny the Genocide

Article 305 is one of the most recent moves in a campaign the Turkish government has embarked upon to deny the Armenian Genocide. A prominent historian on the Armenian Genocide, Richard Hovannisian, has argued that during the years that followed the Armenian Genocide, the strategy of the perpetrators of the Genocide and their successor, the Turkish Republic, was “to avoid public discussion of the genocide believing that in the course of time the survivors would pass from the scene, their children would become acculturated and assimilated in the Diaspora, and the issue would be forgotten.” (1) Hovannisian has analyzed Turkish denial strategies and pointed out that one often-used method is denial under the guise of historical debate. The historian has examined in detail how the Turkish government attempts to present a distorted version of historical realities.

Turkish Prime Minister Recep Tayyip Erodgan’s proposal to Armenia for setting up a joint committee of Armenian and Turkish historians, to examine the issue, might be considered as the latest such effort. The proposal was rejected by the Armenian government based on the premise that historians have already made their statements on the Armenian Genocide. Instead, Armenian president Robert Kocharian proposed steps towards establishing diplomatic relations between the two countries (2).

Another historian, Rouben Adalian, has talked about three lines of arguments advanced by disputers of the Armenian Genocide: The denial thesis “reverses the course of history and depict the victims as the victimizers”, the revisionist thesis does not deny the fact, but tries to explain them in a way as to dispute that genocide occurred, the justification thesis defends “the policy of genocide by regarding the policy as an acceptable solution to a political problem.” (3)

Article 305 of the Turkish Penal Code is only one example of the denialist policy of the Turkish Government. Its significance, however, lies in the fact that it “legalizes” such denial and sanctions punishments against those who affirm the fact.

Reactions to article 305

The reactions to the article have not been many. Moreover, no justification has been given by any Turkish official or the government for the adoption of the article. The only explanation for it is included in the article itself, which considers affirmation of the Armenian Genocide to be against “national interests.”

First news about the existence of the article broke before the adoption of the Penal Code, when the European Armenian Federation for Justice and Democracy (EAFJD), a Brussels based lobby group, issued a press release, warning that the new Turkish Penal Code would criminalize affirmation of the Armenian Genocide and calling on the “European Commission to end its silence in the face of Turkey’s denial campaign.” (4) The federation warned that the article is “fundamentally incompatible with the European values of free expression” and called on political parties, governments and human rights organizations across Europe to urge the European Commission to demand justice for the Armenian Genocide.

Nevertheless, the Penal Code was adopted and with it the article. Press releases issued by the EAFJD, the Armenian National Committee of America (ANCA), a US-based lobby group, and a couple of non-governmental organizations condemning the article, attested to its adoption.

In early October 2004, the EAFJD issued a press release informing that it has submitted to the European Commission a detailed report about the strategy of the Turkish Government vis-à-vis Armenian issues. The report had a “special focus on the recent adoption of article 305 which criminalizes the affirmation of the Armenian Genocide.” (5) The executive director of the federation warned in the press release that “this attack on liberty clearly contradicts accepted international laws dealing with freedom of speech, specifically articles 10, 11 and 14 of the European Charter of Fundamental Rights.”

(1) Hovannisian, R. G. (1999). Introduction. In R. G. Hovhannisian (ed), Remembrance and Denial: The Case of the Armenian Genocide (13-29). Detroit: Wayne State University Press.
(2) Danyelyan, E. and Melkumian, H. Kocharian rejects Turkish offer of joint Genocide study. Retrieved 06-06-2005.
(3) Adalian, R. (1992). The Armenian Genocide: Revisionism and Denial. In M.N. Dobkowski and I. Wallimann (ed), Genocide in Our Time: An Annotated Bibliography with Analytical Introductions (85-105). Michigan: The Pierian Press.
(4) The new Turkish Penal Code would criminalize recognition of the Armenian Genocide. Retrieved 01-01-2005.
(5) EAFJD delivers report on Turkey to the European Commission. Retrieved 06-10-2004.

Turkey legalizes the denial of the Armenian Genocide – Part I

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

Article 305

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.