Article 301 (Turkish Criminal Code)

Protest against Art. 301 in front of a Turkish consulate (before the reform of April 30, 2008)

The insult to the Turkish nation, the State of the Turkish Republic and the institutions and organs of the state ( Turkish Türk Milletini, Türkiye Cumhuriyeti Devletini, Devletin kurum ve organlarını aşağılama ) is a criminal offense in the Turkish Penal Code ( Türk Ceza Kanunu , TCK), regulated in Art 301 , which has been in force since June 1, 2005. With the publication of Law No. 5759 in the Official Gazette of Turkey , it was replaced by the revision of the article on May 8, 2008.

History and wording

Art. 301 TCK is based on Art. 159 of the old Turkish penal code. The old Turkish criminal law was largely copied in 1936 from Mussolini's Italian “Codice Rocco” . Since then, Art. 159 has been changed seven times. Especially under pressure from the European Union, the amendments to the law of the third and seventh harmonization package (dated August 3, 2002) with the amendment of Art. 159 (later paragraph 4 of Art. 301) made it clear that not an expression of opinion, but only deliberately denigrating or disparaging criticism constitutes an offense. Art. 159, last version, provided for a three-year prison sentence for all criminal offenses. In addition, it included an authorization to prosecute the Minister of Justice. Until the introduction of Art. 301 in 2005, the public prosecutor could not open any proceedings without the consent of the Minister. This authorization to prosecute was reintroduced in 2008. The sentence has been reduced from three to two years. This means that suspended sentences are also possible.

Art. 301 old version (Turkish)	Version from 2008 (Turkish)
Art. 301 degradation of Turkishness , the republic and the institutions of the state and its organs	Art. 301 degradation of the Turkish nation , the state of the Republic of Turkey, the institutions of the state and its organs
(1) Whoever Turkishness publicly decreases, the Republic and the Grand National Assembly of Turkey, is six months to three punished years in prison.	(1) Anyone who publicly disparages the Turkish nation , the state of the Turkish Republic, the Grand National Assembly of Turkey, the government of the Turkish Republic and the state judicial organs shall be punished with six months to two years in prison.
(2) Anyone who publicly disparages the government of the Republic of Turkey, the state judicial organs or the state armed forces or security forces is punished with six months to two years in prison.	(2) Anyone who publicly disparages the state armed forces or security forces will be punished in accordance with Paragraph 1.
(3) If the denigration of Turkishness was committed abroad by a Turkish citizen, the penalty is increased by a third.
(4) Expressions of opinion that are made with the intention of criticism do not constitute a criminal offense.	(3) Expressions of opinion that were made with the intention of criticizing do not constitute a criminal offense.
	(4) The criminal prosecution for this act depends on the authorization of the Minister of Justice.

The Turkish expression "aşağılamak" can also be translated into German as " denigration ", "insult", " humiliation " or "degradation".

Legal practice

The nationalist “legal association” Büyük Hukukçular Birliği with around 700 members, chaired by Kemal Kerinçsiz, filed criminal charges against well-known Turkish academics, journalists and intellectuals in May 2005. The Criminal Division of the Court of Cassation defined on 11 July 2006 in the Hrant Dink judgment, the Turkishness as follows:

“Turkishness means the totality of national and ideal values, derived from human, ethical, religious and historical values and from the national language, national feelings and traditions of people or communities rejecting racism of different languages, religions, races and different thoughts in the national consciousness result."

Of all proceedings under Article 301, around eleven percent are for the offense of 'insulting Turkish people'. In the rarest of cases, there is a conviction for this criminal offense. Far more cases concern insulting the Republic of Turkey , the judicial authorities and the security and police forces ; numerous intellectuals and writers were therefore indicted and convicted. Prominent recent examples:

The Armenian journalist Hrant Dink , who was murdered in 2007, was the first to be sentenced to six months probation on October 8, 2005 for a newspaper article on February 13, 2004 for “insulting Turkish citizenship”.
The proceedings against Orhan Pamuk , the Nobel Prize for Literature , were closed on January 22, 2006 on the grounds that the Turkish Justice Minister had no authorization to prosecute.
The Turkish lawyer and human rights activist Eren Keskin was convicted by the 3rd criminal chamber in Istanbul on March 14, 2006 for statements about the Turkish army at a panel discussion in Cologne in 2002.
The writer Elif Şafak was acquitted of the charge in September 2006.
In May 2007 the Kurdish politician Mahmut Alınak was sentenced to 10 months in prison for insulting parliament and the armed forces.
On October 11, 2007, a criminal court in Istanbul sentenced Arat Dink , the brother of the murdered Hrant Dink, and Serkis Seropyan to one year in prison for insulting Turkish people.
On March 20, 2008, the lawyer and human rights activist Eren Keskin was sentenced by a Turkish court to six months' imprisonment.

According to the Turkish-language news broadcaster CNN -Türk, 1,481 lawsuits based on this article were opened within five years. According to Handelsblatt , the number of indictments rose from 835 in 2007 to 744 in the first quarter of 2008.

May 1, 2008: Report of the Media Monitoring project for the first three months of 2008. According to the report, Justice Minister Mehmet Ali Sahin announced that in 2006 1,533 people had been charged with an offense under Article 301 TSG in 835 proceedings. In the first three months of 2007, 744 proceedings with 1,189 defendants were added.
September 10, 2008: Following the amendment to the law in May 2008, the Ministry of Justice approved the opening of proceedings in 36 cases, refused approval in 115 cases and the examination of applications for approval was still ongoing in 98 cases.
March 28, 2010: In a retrial, Orhan Pamuk, winner of the Nobel Prize for Literature in 2006, was sentenced to pay compensation of 6000 Turkish Lira to six plaintiffs who, through his statements on the genocide of the Armenians (Pamuk: “The Turks killed 30,000 Kurds and 1 million Armenians on this soil. ”) Felt offended.

Amendment to the law in 2008

Until the amendment to the law in 2008 (with Law No. 5759 of April 30, 2008) the term “Turkishness” was part of the legal text. On April 7, 2008, the bill was introduced to parliament. The phrase “degradation of Turkishness” was replaced by “insulting the Turkish nation” and the range of punishment was reduced to a maximum of two years. In addition, proceedings under Art. 301 are only to be initiated in future with the express authorization of the Minister of Justice. The Turkish Parliament approved the revision of the law on April 30, 2008.

International comparison and criticism

The main difference between the criminal offenses of other countries and Turkey was that, in contrast to the current formulation “Turkish nation”, the term “Turkishness” was used. Similar penal laws in other countries, in which the degradation of state institutions is punishable, do not have a parallel equivalent to this element of the offense . The alleged or imputed "insult to Turkishness" offers Turkish judicial authorities and private plaintiffs room for interpretation for complaints against critics from their own country as well as for critical remarks about the Turkish handling of the Armenian genocide and the public recognition of the genocide.

The content of the article was and is vague and open to arbitrary interpretations due to the indefinite legal terms "degradation" and "Turkishness": It is unclear what distinguishes "degradation" of so-called Turkishness from "criticism" of it. For example, the Turkish Nobel Prize laureate Orhan Pamuk was charged with insulting Turkishness and criticizing the genocide of the Armenians. The proceedings were initially discontinued on January 22, 2006; Orhan Pamuk was sentenced to a fine after resuming in March 2011. The Turkish writer Elif Shafak was also charged with her novel The Bastard of Istanbul , published in 2007 in the United States in English, for degrading Turkish citizenship in Turkey. This proceeding has been discontinued.

In an international comparison, the article curtails freedom of expression and a. viewed by the Council of Europe , the European Commission and also Amnesty International as a serious threat to freedom of expression and freedom of the press in Turkey.

In 2007, numerous politicians of Turkish origin active in German politics, including Cem Özdemir , petitioned the Turkish government not only to improve the semantic text of the law, but also to delete Section 301 from the Turkish Penal Code without replacement.

The legal scholar Işıl Karakaş , who was sent to the European Court of Human Rights by the Republic of Turkey as a judge, criticized Article 301 of “Turkishness” in 2008 and advocated defusing it.

The European Commission and the European Parliament stated in the Turkey 2010 Progress Report that Article 301 of the Turkish Penal Code, adopted by the Turkish National Assembly on April 30, 2008 and entered into force on May 8, 2008, continues to protect freedom of expression Turkey violates: “The European Parliament (...) regrets that some legislation, such as Article 301 (...), as well as government statements and actions by prosecutors - continue to restrict freedom of expression. It reiterates its previous call for the government to complete the review of the legal framework for freedom of expression and bring it immediately into line with the ECHR and the case law of the European Court of Human Rights. "

Individual evidence

↑ Grand National Assembly of Turkey : Law: 5759 on the Amendment to the Turkish Penal Code, April 30, 2008 , in Turkish

↑ Turkish Penal Code , Turkish

↑ See an article on hukukcu.com ( Memento from December 27, 2008 in the Internet Archive )

↑ The regrettable story of Article 301 ( Memento of February 8, 2007 in the Internet Archive ) TDN, January 25, 2007

↑ cf. Art. 159 Turkish Criminal Code (version 2002) in: The honor in Turkish criminal law ( memento from October 19, 2007 in the Internet archive ) by lawyer Dr. Christian Rumpf, Stuttgart 2003

↑ Democratization à la Turca and the European Union: A content-analytical study of the democratization discourses in the Turkish parliament (1996–2003) ( Memento of the original from March 4, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Prof. Dr. Ahmet Island and Ahmet Esat Bozyiğit, Galatasaray University, Istanbul December 2005

↑ TÜRK CEZA KANUNU Kanun No. 5237. Kabul Tarihi: September 26, 2004

↑ Silvia Tellenbach (Ed.): The new Turkish criminal and criminal procedure law . Berliner Wissenschaftsverlag (BWV), Berlin 2008, ISBN 978-3-8305-1538-8 ( German-Turkish legal studies . Volume 6), p. 105.

↑ TÜRK CEZA KANUNUNDA DEĞİŞİKLİK YAPILMASINA DAİR KANUN Kanun No. 5759. Kabul Tarihi: 30/4/2008

↑ Helmut Oberdiek: Expert opinion for VG Magdeburg (7 A 88/06 MD) (PDF; 321 kB) May 9, 2007

^ In Turkey, ultra-nationalist lawyer wins supporters as enthusiasm for the EU falls IHT, September 5, 2006

↑ TURKEY: TRIAL FOR “INSULTING TURKISHNESS” STILL HOUNDING CONVERTS ( Memento of the original from March 4, 2007 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Compass Direct News, March 17, 2008 @1@ 2

↑ See also Osman Can: The protection of state honor and religious feelings in Turkey . In: Otto Depenheuer, İlyas Dogan, Osman Can (ed.): The protection of state honor and religious feelings and the independence of the judiciary . LIT Verlag, Münster 2008, ISBN 978-3-8258-1572-1 , pp. 33-50.