30.04.2008 - Source: BBC News

Parliament approves softening of law criticised by EU for limiting free speech; article 301 of penal code was used against critics for "insulting Turkishness" ("Turkey reforms controversial law") [ID 23211]

Document(s): Open document

17.04.2008 - Source: Human Rights Watch

According to HRW, the government`s proposed revision of Article 301 of the Turkish Penal Code, will not remove the article`s restrictions on free speech ("Government Amendments Will Not Protect Free Speech") [ID 22990]

Document(s): Open document

09.01.2008 - Source: Deutschlandfunk

Government plans to amend Art. 301 of Turkish Penal Code (defamation of “Turkishness” and of government institutions) ("Artikel 301 vor der Änderung") [ID 22092]

Document(s): Open document

06.11.2007 - Source: European Commission

Freedom of expression ("Turkey 2007 Progress Report [SEC(2007) 1436]") [ID 22355]

"As regards freedom of expression, including the media, open debate continued in the Turkish media on a wide range of issues, including those perceived to be sensitive by Turkish society.

However, the prosecution and conviction for the expression of non-violent opinions under certain provisions of the Turkish Criminal Code are a cause of serious concern. The number of persons prosecuted almost doubled in 2006 compared with in 2005), and there was a further increase in the number of prosecutions in 2007. More than half of these charges were brought under the Criminal Code, and in particular under article 301, which penalises insulting "Turkishness", the Republic and the organs and institutions of the state. The restrictive jurisprudence established in 2006 by the Court of Cassation on article 301 remains in force. Against this background, article 301 needs to be brought in line with the relevant EU standards. The same applies to other legal provisions7 which have been used to prosecute the non-violent expression of opinions and may limit freedom of expression. The potential impact of the anti-terror law on freedom of expression is a concern."

Document(s): Open document

09.11.2006 - Source: Reporters Sans Frontières

EU criticises penal code article 301 (insulting Turkishness) under which 65 people have been prosecuted ("EU criticises Turkish penal code article under which 65 people have been prosecuted") [ID 18401]

Document(s): Open document

10.10.2006 - Source: International Helsinki Federation for Human Rights

Penal Code and minority rights ("A Minority Policy of Systematic Negation") [ID 18154]

"[...] the Turkish penal code has been used to silence voices promoting minority rights - and even discussion on minorities - despite the fact that in the past few years some key provisions of the code were discarded or amended in ways that nominally protect freedom of expression. Article 216 of the penal code still deals with “inciting enmity or hatred among the population” and article 301 with “denigration of Turkishness, the Republic, and the foundation and institutions of the State.” Article 301(1) took effect in June 2005 and states: “A person who explicitly insults being a Turk, the Republic or Turkish Grand National Assembly, shall be imposed to a penalty of imprisonment for a term of six months to three years.” Article 301(3) says: “Where insulting being a Turk is committed by a Turkish citizen in a foreign country, the penalty to be imposed shall be increased by one third.” Moreover, the interpretation of these provisions by prosecutors and courts has been broad. Several well-known writers, including Orhan Pamuk, have stood and are standing trial under these provisions for citing, for example, the genocide of Armenians during the last years of the Ottoman Empire, or killings of Kurds during the long-lasting conflict between Turkish forces and Kurdish separatists."

Document(s): Report
Press Release

21.09.2006 - Source: Reporters Sans Frontières

Prime Minister Erdogan comments on novelist Elif Shafak’s acquittal on charge of “insulting national identity” under article 301 of the criminal code, announcing to amend the article which allowed her to be prosecuted ("Prime Minister talks of amending “national identity”article used to prosecute writers and journalists") [ID 17738]

Document(s): Open document

06.09.2006 - Source: Council of Europe - European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

New Criminal and Criminal Procedure Codes (relatively short police custody periods; right of access to a lawyer) ("Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 14 December 2005 [CPT/Inf (2006) 30]") [ID 18626]

"[...] New Criminal and Criminal Procedure Codes, as well as a revised version of the Regulation on Apprehension, Detention and Statement Taking, entered into force on 1 June 2005. These texts have consolidated improvements which had been made in recent years on matters related to the CPT`s mandate. It is more than ever the case that detention by law enforcement agencies (police and gendarmerie) is currently governed by a legislative and regulatory framework capable of combating effectively torture and other forms of ill-treatment by law enforcement officials.

[...] Authorised police/ gendarmerie custody periods are now relatively short (24 or, in some cases, 48 hours, with a possible extension to a maximum of four days as regards "collective" offences),1 and detained persons are entitled to notify a third party of their situation and to have access to a lawyer, as from the outset of their custody. Reference should also be made to the system of medical examinations at the outset and end of police/gendarmerie custody (and when transfers or custody period extensions occur), the detailed custody registers now in use, and the provision made for frequent monitoring visits to law enforcement establishments by public prosecutors.

Further, the penalties provided in the new Criminal Code for the offences of "torture" or "ill-treatment" are of a level which can be considered as dissuasive, and include a minimum sentence of imprisonment."

Document(s): Report
Government response [CPT/Inf (2006) 31]

08.2006 - Source: Federal Office for Migration and Refugees (Germany)

On Art. 221 Turkish Penal Code (exemption from punishment for members of a criminal organisation who have not been involved in a criminal offence by this organisation and who leave the organisation voluntarily); Art. 221 increasingly relevant for trials against former members of PKK (in German) ("Straffreiheit nach Art. 221 II tStGB n.F. (in: Entscheidungen Asyl Nr. 8/2006, S. 2)") [ID 17585]

Document(s): Entscheidungen Asyl 08/2006
Entscheidungen Asyl 08/2006 S. 2

25.07.2006 - Source: Guardian

Since introduction of Article 301 of the Turkish criminal code last year 60 writers were charged for critical opinions; Elif Shafak faces trial for insulting Turkishness in a novel dealing with atrocities and deportations against Armenian population in last years of Ottoman rule ("In Istanbul, a writer awaits her day in court") [ID 17587]

Document(s): Open document

08.03.2006 - Source: Konrad Adenauer Stiftung

Penal law reform projects in turkey ("Jahresbericht Türkei 2005") [#46724],  [ID 13337]

"letzte EU-Fortschrittsbericht für die Türkei bestätigte die durchaus positive Entwicklung der Anpassung des Landes an EU-Rechtsstandards. Die Einführung eines neuen Strafrechts einschließlich der novellierten Strafvollzugs- und Strafprozessordnung war 2005 ein bedeutender Meilenstein im türkischen Strafrechtsverständnis und ein großer Schritt in Richtung Angleichung an das europäische Rechtsverständnis und die Rechtspraxis. Einige NRO und Anwaltskammern wiesen aber bereits vor der Verabschiedung auf Defizite des neuen Strafrechts hin, deshalb veranstaltete die KAS in Ankara mit der Anwaltskammer Ankara zu diesem Thema ein Internationales Symposium. Es referierten Anwalt Ayd›n Erdo¤an von der Anwaltskammer und die internationale Strafrechtsexpertin Dr. Silvia Tellenbach. Die Verschiebung des Inkrafttretens der Reform um zwei Monate und letzte Korrekturen am Gesetzestext beruhte auch auf den vielen öffentlichen Diskussionen über das neue türkische Strafrecht."

Document(s): Open document

10.05.2005 - Source: Konrad Adenauer Stiftung

Konrad Adenauer Stiftung: position on new penal law ("Zum neuen türkischen Strafgesetzbuch") [#38991],  [ID 13338]

Document(s): Open document

05.2005 - Source: Organization for Security and Cooperation in Europe

Legal review of new Turkish Penal Code, focused especially on fredoom of media concerns ("Review of the Draft Turkish Penal Code: Freedom of Media Concerns") [#33760],  [ID 13339]

Document(s): Open document

23.03.2005 - Source: Amnesty International

There are concerns that the new Penal Code which is due to come into effect on 1 April contains numerous restrictions on fundamental rights, especially the right to freedom of expression ("Concerns about new Penal Code should be addressed") [#30535],  [ID 13340]

Document(s): Open document

28.02.2005 - Source: US Department of State

Articles of Penal Code prohibiting insults to Government limited freedom of expression ("Country Report on Human Rights Practices 2004") [#29519],  [ID 13341]

"The Government, particularly the police and judiciary, limited freedom of expression through the use of constitutional restrictions and numerous laws, including articles of the Penal Code prohibiting insults to the Government, the State, or the institutions and symbols of the Republic. Other laws, such as those governing the press and elections, also restrict speech. In September, Parliament adopted legislation prohibiting imams, priests, rabbis, and other religious leaders from "reproaching or vilifying" the Government or the laws of the State while performing their duties (see Section 2.c.). The "reasoning" attached to the Penal Code states that persons could be found in violation for accepting payment from foreign sources for the purpose of conducting propaganda in favor of withdrawing troops from Cyprus or (quoting from the text of the "reasoning") "saying that Armenians were subject to a genocide at the end of the First World War." The reasoning is not law, but serves as guidance to judges and prosecutors on how to apply the law."

Document(s): Open document

28.02.2005 - Source: US Department of State

New Penal Code provides increased punishment for torture ("Country Report on Human Rights Practices 2004") [#29519],  [ID 13343]

"In September, Parliament adopted a new Penal Code that provides increased punishment for torture. Under the new law, the sentence for most torture convictions is 3 to 12 years in prison. Previously, the maximum penalty was 8 years per victim, and most persons sentenced to jail terms received 2 years. The new Code also establishes higher penalties, including life imprisonment, for aggravated torture, and prison terms of up to 3 years for police who fail to report torture. The new Penal Code increases the maximum statute of limitations for torture cases and other felonies from 15 years to 30 years and allows for the statute to be suspended in certain circumstances. The law requires that trials, including appeals, be completed before the statute of limitations expires; otherwise, the trial ends without a verdict. The extension of the statute of limitations was expected to make it difficult for defendants in torture cases to avoid a verdict by delaying court proceedings."

Document(s): Open document

15.02.2005 - Source: Council of Europe - European Commission against Racism and Intolerance

Changes in Criminal Code ("Third report on Turkey: Adopted on 25 June 2004 and made public on 15 February 2005 [CRI(2005) 5]") [#30573],  [ID 13342]

"14. ECRI notes that Article 312 of the Criminal Code has been amended, restricting the prohibition of incitement to hatred to cases where it jeopardises public order. According to many sources, incitement to racial hatred occurs in public and is even reproduced in the media. Moreover, Article 312 apparently continues to be used without real justification by certain public prosecutors particularly in order to prosecute members of human rights NGOs or personalities expressing “pro-Kurdish views”. However, it is true that the courts increasingly acquit persons wrongly prosecuted on the basis of this provision. The Turkish authorities have informed ECRI that in July 2004, the Court of Cassation (8th Criminal Chamber) quashed a decision of the Istanbul State Security Court which had interpreted Article 312 in a manner which violated the right to freedom of expression. A few days later, the same Chamber applied Article 312 to a case concerning a person who had made racist comments against Kurds, by holding that this was a case of discrimination and incitement to hatred against “citizens of Kurdish identity”. In two other cases, a Prosecutor in Istanbul instituted legal proceedings under Article 312, against two people who had made antisemitic statements. ECRI welcomes these latest developments as they respect the real purpose of Article 312 which is to punish racist remarks so as to show that they cannot be tolerated in a pluralist democratic society.

15. ECRI notes with satisfaction that since Autumn 2003, Turkish Judges and Prosecutors, notably those working in the State Security Courts (which are now abolished) and the Court of Cassation, have been attending training courses on international and European Human Rights standards, including on the European Convention on Human Rights.

16. ECRI notes that a new criminal code was adopted on 26 September 2004. It notes with satisfaction that this code contains provisions which are relevant to the fight against racism, notably one provision which prohibits genocide and crimes against humanity. Moreover, article 122-1 now provides that a six months to one year sentence and a fine shall be meted out to anyone who discriminates on the grounds of language, race, colour, religion or sect in the following areas: the sale or transfer of goods or services, employment, the provision of food, access to services which are available to the public and the exercise of an economic activity.

17. In its second report, ECRI stated its opinion on Article 5 of the Associations Act, which prohibited associations whose purpose was to “claim that minorities based on class, racial, linguistic, religious, or regional differences exist on the territory of the Republic of Turkey, or create minorities by protecting, promoting, upholding or spreading languages and cultures other than the Turkish language and culture”. ECRI considered that this law excessively restricted the expression of ethnic and cultural identity in Turkey. The Associations Act has been substantially redrafted with a view to greater freedom. In particular, Article 5 has been amended and henceforth prohibits associations whose purpose is to “create forms of discrimination on the grounds of race, religion, sect or region or create minorities on these grounds, and destroy the unitary structure of the Republic of Turkey”. However, it would not seem easy to distinguish between associations which claim that minorities exist (previous wording) and those whose purpose is to create minorities. Furthermore, it is not easy to ascertain what is understood by “forms of discrimination on the grounds of religion or region”, for example.

18. ECRI welcomes the amendment of Article 6, which prohibited associations from using any language other than Turkish, both orally and in writing, including at private meetings of members of the association. The requirement that Turkish be used is now confined to written communications with the authorities. However, ECRI notes with concern that the prohibition on speaking a language other than Turkish at public political meetings is maintained in the Political Parties Act and that criminal proceedings are still brought on that basis. Generally speaking, ECRI welcomes the progress made in terms of freedom of association, such as the fact that Turkish associations are allowed to join international organisations or take part in international activities without having to apply for prior authorisation.

19. In its second report ECRI recommended that the Turkish authorities provide for an aggravating circumstance in the event of racist motives in respect of all ordinary offences. The Criminal Code remains unchanged on this point."

Document(s): Open document

06.10.2004 - Source: European Commission

New Penal Code adopted in September 2004, adoptation of modern European standards ("Regular Report 2004 on Turkey´s progress towards accession") [#26161],  [ID 13344]

"A new Penal Code was adopted in September 2004, replacing the 80 years old existing Penal Code. In general, the Code adopts modern European standards in line with the recent developments of criminal law in many European countries. It strengthens sanctions against certain human rights violations and introduces new offences reflecting recent developments in international criminal law such as genocide and crimes against humanity, discrimination and abuse of personal data (detailed assessment of the legislation is given in section 1.3 Human rights and the protection of minorities)."

Document(s): Open document

06.10.2004 - Source: European Commission

New Penal Code provides limited progress on freedom of expression; examples in the accompanying reasoning are of concern ("Regular Report 2004 on Turkey´s progress towards accession") [#26161],  [ID 13345]

"On the basis of an initial analysis, the new Penal Code, adopted in September 2004, narrows the scope of some articles that have been used to convict those expressing nonviolent opinion. The new Article 216 (which largely corresponds with the current 312) states that individuals can be convicted under this article only if their “incitement to enmity and hatred” constitutes a “clear and close danger”. Article 305, which penalises those who receive pecuniary benefits from abroad for “activities in contravention of fundamental national interests” has also been limited in scope as compared with Article 127 in the current Code. However, it is of concern that in the accompanying reasoning, the examples of activities which could be considered in contravention of national interests go well beyond what would be acceptable under the ECHR. The minimum sentence for defamation is reduced in the new Code. Other relevant articles, such as the current 159 and a provision criminalising religious personnel for criticising the state, appear virtually unaltered in the new Code and the penalty for discouraging people from performing military service has been increased.

Overall the new Penal Code provides limited progress on freedom of expression. Articles that have been frequently used to restrict freedom of expression and have been assessed as potentially conflicting with Article 10 of the ECHR, have been maintained or changed only slightly. The implementation of the new Code will have to be closely followed in order to assess its effect in practice."

Document(s): Open document

07.07.2004 - Source: World Organisation Against Torture

Broadened definition of torture includes torture by civil servants and public employees ("Violence Against Women - 10 reports - year 2003") [#24621],  [ID 13346]

"On August 26, 1999, the Turkish legislature passed Law No 4449 which broadened the definition of torture in Article 243 to include acts of torture by civil servants and public employees carried out for any purpose and increased the penalty for torture from the previous maximum of 5 years to 8 years imprisonment. Article 243 now reads: “A civil servant or other public employee who resorts to torture or cruel, inhuman or degrading treatment in order to make a person confess a crime, to prevent a victim, plaintiff, somebody participating in a trial or a witness from reporting incidents, to prevent them from filing a formal complaint or because they filed a formal complaint or for any other reason, shall be sentenced to a heavy prison penalty of up to eight years and permanent or temporary disqualification from service.” Law No. 4449 also increased the punishment for illtreatment; Article 245 of the Penal Code now provides that “those authorized to use force and all police officers who, while performing their duty or executing their superiour’s orders, threaten or treat badly or cause bodily injury to a person or who actually beat or wound a person in circumstances other than prescribed by laws and regulations, shall be punished by imprisonment for three months to five years and shall be temporarily disqualified from the civil service.” [...] Under Article 238(2) of the Criminal Procedure Law, statements of suspects obtained by means of torture or other ill-treatment at police stations or at the offices of the prosecutors cannot be used as evidence in trials. In 1992, the Turkish Code of Criminal Procedure was amended to provide that torture and ill-treatment constituted “prohibited interrogation methods.”"

Document(s): Introduction and Contents
Cover Turkey

07.07.2004 - Source: World Organisation Against Torture

Limited definition of rape in penal code ("Violence Against Women - 10 reports - year 2003") [#24621],  [ID 13347]

"As the Turkish Penal Code currently stands, the definition of rape has
been interpreted by Turkish Supreme Court of Appeals as penetration of
the vagina by the penis, or as anal rape of a man or woman by the penis.49
This definition of rape is very limited as, for example, rape with an object
and forced oral sex are not considered rape and provide for a lesser punishment."

Document(s): Introduction and Contents
Cover Turkey

07.07.2004 - Source: World Organisation Against Torture

Sex crimes against non-vergins perceived less serious offence than those committed against vergins ("Violence Against Women - 10 reports - year 2003") [#24621],  [ID 13348]

"The Turkish Criminal Code defines rape of a virgin aged 15 or over with a
promise of marriage as a crime under article 423(1) providing that anyone
taking the virginity of a girl above 15 years of age with the promise of
marrying her shall be sentenced to between 6 months and 2 years of
imprisonment. If the man marries the woman, the case and the punishment
are deferred. However, if the couple divorce within five years and
proceedings are initiated and the husband is found guilty, the aforementioned
punishment is implemented. The crime is only punishable if the
victim was a virgin at the time of the rape.
OMCT is very concerned by the fact that sex crimes committed against
non-virgins are perceived to be a less serious offence than those committed
against virgins. Moreover, OMCT is gravely concerned by the fact that
there shall be no punishment in cases of rape when the perpetrator marries
the victim. This provision may lead to a woman being pressured into marrying
her rapist in order to preserve her family’s “honour,” thus punishing
the victim while the perpetrator is acquitted."

Document(s): Introduction and Contents
Cover Turkey

07.07.2004 - Source: World Organisation Against Torture

Minimum sentence for rape of minor under age 15 ("Violence Against Women - 10 reports - year 2003") [#24621],  [ID 13349]

"Article 414 states that “whosoever rapes a minor under the age of 15 shall
be sentenced to a minimum of five years imprisonment.” If force, violence,
threats or abuse of minors is involved then the minimum sentence
is 10 years’ imprisonment. According to article 415, “Those who commit
an act or action against the honour and chastity of a child who has not
completed the age of 15 shall be imprisoned from two to four years and if
this act and action shall be executed under the conditions specified in the
second paragraph of the above article, the imprisonment period shall be 3
to 5 years.” Article 416 provides that sexual intercourse with a person
between 15 and 18 years, even if consensual, constitutes a crime and carries
a punishment of from six months to three years imprisonment.
According to article 417, “If the acts and actions specified in the above
articles are committed by more than one person or committed by one of
the brothers, family members, parents, guardians, teachers, trainers or servants
or those to whom the child is left, the penalty foreseen by the law
shall be increased by half.”"

Document(s): Introduction and Contents
Cover Turkey

07.07.2004 - Source: World Organisation Against Torture

Prosecution of sexual violence stresses harm suffered by family and community ("Violence Against Women - 10 reports - year 2003") [#24621],  [ID 13350]

"As mentioned above, articles 414-424 of the Turkish Criminal Code deal
with crimes of sexual assault, entitled “Felonies Against Public Decency
and Family Order.” The title of this section of the Code demonstrates that
the approach taken by State authorities to the investigation and the prosecution
of sexual violence does not stress the violation of the physical and
psychological integrity of victim, but rather the harm suffered by the family
and the community."

Document(s): Introduction and Contents
Cover Turkey