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08 February 2007

Defense of Article 301 of the Turkish Penal Code

Seems I am misunderstood on many levels:
1. I am not a supporter of Article 301. I agree that it's bad, that it limits free speech, that it should be modified or eliminated.. one day.
2. Defending it's necessity or existence does not supercede No. 1 above
3. It's true that Article 301 is enforced frivolously by people in TR with an ax to grind. Shame on them.
4. I believe that elimination of Article 301 will cost many lives.
5. Many other countries have similar laws, to wit:

Article 248 of the Austrian Penal Code :
Whosoever, in such a manner that the act becomes known to the general public, in a malicious way, insults and brings into contempt the Austrian Republic and its States, is liable for imprisonment for up to one year. Whosoever, in the manner described in Paragraph 1, in a malicious manner and at a public occasion or a function open to the public, insults, brings into contempt or belittles the flag displayed for official purposes or the national or state anthems of the Austrian Republic or its States, is liable for imprisonment of up to 6 months or a fine of up to 360 times the fixed daily rate.

The German Criminal Code Section 90 concerns Disparagement of the State and its Symbol. It provides that:
Whoever publicly, in a meeting or through the dissemination of writings (Section 11 subsection (3)): 1. insults or maliciously maligns the Federal Republic of Germany or one of its Lands or its constitutional order; or 2. disparages the colors, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its Lands, shall be punished with imprisonment for not more than three years or a fine.

Identification of "Crimes Against the State" in Italy features
public insult or vilification of the flag or any other emblem of the State.
Article 292 of the Criminal Code deals with anyone who "publicly insults or vilifies" the national flag or "other emblem" of the state, punishable by imprisonment for up to four years. It encompasses those who publicly insult or vilify the national colors as distinct from the flag.

In Portugal Article 332 of the Penal Code, dating from 1999, provides that
Anyone who by words, gesture, in writing or by any other means of public communication, desecrates the Republic, national flag or the national anthem the symbols or emblems of the Portuguese sovereignty, or in any other way fails to pay them their due respect, shall be punished with a prison sentence of up to 2 years or with a pecuniary penalty of up to 240 days.

11 comments:

Anonim said...

This is not a defense of the article in question, which is Article 301 with its particular "insulting Turkishness" concept. Do we see a similar concept of insulting "Austrianness," "Germanness," "Italianness," or "Portugueseness" in the examples given above? No. What do we see? We see the concept of insulting the flag, anthem, and/or such similar emblems of the republic. Now, where in the Turkish Penal Code are these addressed?

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Article 299: Addresses "insulting the President of the Republic."
(1) Cumhurbaşkanına hakaret eden kişi, bir yıldan dört yıla kadar hapis cezası ile cezalandırılır.
(2) Verilecek ceza, suçun alenen işlenmesi hâlinde, altıda biri; basın ve yayın yolu ile işlenmesi hâlinde, üçte biri oranında artırılır.
(3) Bu suçtan dolayı kovuşturma yapılması, Adalet Bakanının iznine bağlıdır.

Article 300: Addresses "insulting the flag (1) and the national anthem (2)."
(1) Türk Bayrağını yırtarak, yakarak veya sair surette ve alenen aşağılayan kişi, bir yıldan üç yıla kadar hapis cezası ile cezalandırılır. Bu hüküm, Anayasada belirlenen beyaz ay yıldızlı al bayrak özelliklerini taşıyan ve Türkiye Cumhuriyeti Devletinin egemenlik alâmeti olarak kullanılan her türlü işaret hakkında uygulanır.
(2) İstiklal Marşını alenen aşağılayan kişi, altı aydan iki yıla kadar hapis cezası ile cezalandırılır.
(3) Bu maddede tanımlanan suçların yabancı bir ülkede bir Türk vatandaşı tarafından işlenmesi hâlinde, verilecek ceza üçte bir oranında artırılır.

Article 301: Addresses "insulting the Republic and the Grand National Assembly" in addition to that contentious "Turkisness" all in (1).
(1) Türklüğü, Cumhuriyeti veya Türkiye Büyük Millet Meclisini alenen aşağılayan kişi, altı aydan üç yıla kadar hapis cezası ile cezalandırılır.
(2) Türkiye Cumhuriyeti Hükûmetini, Devletin yargı organlarını, askerî veya emniyet teşkilatını alenen aşağılayan kişi, altı aydan iki yıla kadar hapis cezası ile cezalandırılır.
(3) Türklüğü aşağılamanın yabancı bir ülkede bir Türk vatandaşı tarafından işlenmesi hâlinde, verilecek ceza üçte bir oranında artırılır.
(4) Eleştiri amacıyla yapılan düşünce açıklamaları suç oluşturmaz.

Reference: Mother of all sources on the matter
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So the comparison doesn't hold water, and the "Turkishness" concept sticks out as spurious and contentious as before a defense was copied from Wiki. One could also criticize other paragraphs (2 thru 4) of Article 301, but what the hell! Removing one word ("Türklük/Turkishness") from paragraph 1 would go a long, long way.

Still waiting for a definition of "Turkishness" and and explanation of how it could not be denigrated/insulted?

istanbulexpat said...

Bravo!

And I'm tired of the argument that "these other European countries have it, so why shouldn't we?"

Do these countries persecute intellectuals, writers and academics? Anything in the news lately? Don't think so.

The Turkish court system hasn't grown up to match these others yet, anyway. (Oops, I'm on thin ice with that comment as well. Someone might come knocking on my door. )

feridun said...
This comment has been removed by the author.
feridun said...

I feel the same thing about 301.

We have here double standards. Foreign Countries are pushing to abolish 301 but same time don't want to let people realize there is similar laws in their own countries.

301 is necessary. Why? Because, it is protecting, in a way, turkish citizens, whatever culture they have.

As hisyory always repeats itself, in this time it is same case. In th end of The Ottoman Empire there was laws, which protected minorities, as much as evn the minorities couldn't be punish by local regulators because of this law. Whay kind of ironie.

Please come and visit my blog at http://feridun.info

Feridun

Anonim said...

Here you go! Are we doomed to be the laughing stock of the world? I propose that the law be changed to punish acts of "insulting the intelligence of the people." May God protect the Turkish people from her protectors. Some kind of irony indeed.

Gamze said...

Anonim,
Though we have certainly had our differences, I am in COMPLETE agreement with you regarding Aticle 301, and I have said the same on my own blog.

You have made an excellent case against it. Nice job!

Anonim said...

Gamze, following all the developments in Turkey (leading up to and stemming from the EU meltdown basically), I had been on short fuse for quite some time. Sorry for the run-in at your place. It CERTAINLY wasn't planned.

301, as it is in the books, and the record of its application are but one aspect of the poor outlook of Turkey vis-a-vis the universally accepted democratic principles and social/political norms. It appears that the country is getting marginalized internationally while the society is dividing up toward opposite extremes along various axes. It's a vicious circle of sorts. Using istabulexpat's metaphor, it's a poorly executed tango between Turkey and the West. We don't deserve this.

Gamze said...

Anonim,

No hard feelings. I know what it's like to be on short fuse, as you've said.

Troubled times are a comin' for Turkey, and I am afraid to see how all of this is going to be played out in the future. I understand your concerns. I hope we aren't alone in this.

Sean said...

anonim,

Turkey is facing hard times ahead because until now, the International community has not been paying close attention to what the Turks were doing. Now, in part because of EU, and in part because of the opportunities offered by the Internet (information sharing), the world has come to realize Turkey for what it is. I know that most contries (like most people) have problems with their neighbors, but I don't think many of them have problems with ALL their neighbors, like Turkey. Just look around. Problems with Greeks, Armenians, Kurds, Iranians, Assyrians. I have been told that most of the Arab world also has major problems with the Turks. So, it's not religion.

Turks are finally waking up and looking in the mirror. No matter what happens and how hard that is on people like you, in the long run, this is a good thing.

Anonim said...

Sean, most of what you say is incorrect.

Turkey does not have serious problems with Bulgaria, Georgia, or Iran; whatever problems that one may see there are manageable. As for Greece, Armenia and Syria, they have as much trouble with Turkey as Turkey has with them.

Turkey is not the villain you make it out to be. My objections to 301 (or rising ultra-nationalism in Turkey, etc.) shouldn't mislead you. Actually, one reason why I object to such is that emotionally-stuck detractors of Turks and Turkey feel vindicated by them, and call it a day. You know truth or rational thought mattres little to a bunch of 12 year olds having a field day.

Anonim said...

Take this for example as an example of Turkish-Greek (read Cyprus) problems (which I stopped short of calling manageable above although I had my doubts):

"It seems Papadopoulos would not be too unhappy with a build-up of tension between Greece and Turkey over the oil exploration, as this suits his trenchant, confrontational policy that maintains support for the status quo and allows him to pose as the unyielding defender of our national interests. This may be why he had kept Greece in the dark about his plans (for fear there would be objections and calls for a different strategy) and excluded the Turkish Cypriots from the procedures, even though their inclusion could have softened Ankara's stance and allowed problem-free oil exploration."

(From English-language Cyprus Mail, quoted in by Semih Idiz, a columnist of the Turkish Daily News)