ARTICLE 19 concerned about military trial of intellectuals

(ARTICLE 19/IFEX) – In a 20 June 2001 letter to Swedish Prime Minister Göran Persson, in his capacity as European Union (EU) president, ARTICLE 19 expressed concern over the news of an imminent hearing by a military court of sixteen Turkish intellectuals, due to take place on 29 June (1). The organisation called upon the […]

(ARTICLE 19/IFEX) – In a 20 June 2001 letter to Swedish Prime Minister Göran Persson, in his capacity as European Union (EU) president, ARTICLE 19 expressed concern over the news of an imminent hearing by a military court of sixteen Turkish intellectuals, due to take place on 29 June (1). The organisation called upon the EU president to urge Turkey to withdraw the above charges and modify its legislation so as to allow compliance with European standards of freedom of expression, as part of the process of accession to the European Union.

The Facts of the Case

The defendants will be tried for publishing a book titled “Freedom of Thought 2000” in April 2000. The book contained 60 articles written by prisoners of conscience, which had been previously banned by the Turkish state. In particular, two of the articles included in the publication had been banned for violating Article 155 of the Turkish Penal Code, carrying prison sentences of two months to two years for those who publish or publicly make “suggestions to cause unwillingness of the people to render military service.”

The intellectuals are charged under Article 162 of the Penal Code, which prohibits the reproduction of any publication previously outlawed by the authorities. The trial will take place at the General Staff Military Court of Ankara and is scheduled for 29 June. Following the trial it is expected that the decision will be referred to the Supreme Military Court of Appeal which may take a further eight to twelve months to consider the case in full. The upcoming hearing follows the appeal of the first judgement, delivered on 23 May, which found the defendants guilty.

The decision to publish “Freedom of Thought 2000” forms part of a general civil disobedience movement, which began in 1995 following the trial of the writer Yasar Kemal. Kemal was prosecuted for his article published in “Der Spiegel” analysing Turkish government policy in the predominantly Kurdish South-Eastern part of Turkey. 1,080 people protested against Kemal’s trial by re-publishing his article and other banned articles in a book titled “Freedom of Expression”, and 185 of them were prosecuted under Article 162 of the Penal Code. Following a high-profile collective campaign, legal proceedings against them were suspended and Yasar Kemal was acquitted. Sanar Yurdatapan, spokesperson of the Initiative Freedom of Expression, and the former head of the Istanbul branch of the Contemporary Journalists’ Association, Nevzat Onaran, were sentenced to two months’ imprisonment for publishing yet another version of the same booklet.

International Guarantees

This practice is in clear breach of the European Convention on Human Rights (ECHR), to which Turkey is a signatory, Article 10 of which establishes that: “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.”

Turkey is also bound by similar obligations pursuant to Article 19 of the International Covenant on Civil and Political Rights.

The Constitution of the Republic of Turkey establishes in Article 90 that international agreements into which Turkey enters are to prevail over domestic law. Hence legitimate restrictions to the right to freedom of expression have to satisfy the three-part test set by the second paragraph of Article 10 of the ECHR, specifying that such restrictions are to be prescribed by law, pursue a legitimate aim, and be “necessary in a democratic society.” Not only are such conditions not fulfilled in this case, but Articles 155 and 162 directly contradict the ECHR by imposing undue restrictions that serve to curb freedom of expression.

Furthermore, the trial of citizens in military courts violates the right to an “independent and impartial tribunal” enshrined in Article 6 (1) of the ECHR. In the case of Incal v Turkey the European Court said, with regards to the Izmir National Security Court (2) and the position of military judges: “[The military judges] are servicemen who still belong to the army, which in turn takes its orders from the executive…They remain subject to military discipline and assessment reports are compiled on them by the army for that purpose…Decisions taken to their appointment are to a great extent taken by the administrative authorities and the army.”(3)

“[In the use of military courts to try civilians] what is at stake is that confidence which the courts in a democratic society must inspire in the public and above all…in the accused…The Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces…the applicant could legitimately fear that because one of the judges…was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.”(4)

In the case in question, the intellectuals’ defence lawyers referred to the above in the first hearing of 23 May, yet their objections were rejected by the Turkish court despite the fact that Turkey, by virtue of its ratification of the ECHR, is bound by the case-law of the European Court.

Turkey and the European Union

Turkey was recognised as a candidate for membership in the European Union in its summit in Helsinki in December 1999. As a condition for membership, Turkey will have to meet the Copenhagen criteria, including “stability of institutions guaranteeing democracy, the rule of law, human rights, and respect of and protection of minorities.” However, Turkey has until now failed to amend its freedom of expression-related provisions and court practice that have a detrimental effect on the work of journalists and all those that express non-violent opinion.

The Turkish government stated in the Report on the Political Criteria, prepared by its Special Committee on Turkey-EU Relations in February 2000: “The provisions of related legislation, including particularly the Turkish Penal Code…that restrict freedom of thought and expression and allow flexible interpretation by the administration should be redrafted.”

Notes:
1. Cengiz Bektas (architect, writer, president of TYS: Turkish Writer’s Union), Sadik Dasdogen (owner of BERDAN Printing House),Yilmaz Ensaroglu (president of MAZLUM-DER: Islamic HR Association), Siyami Erdem (president of KESK: Confederation of Civil Servants’ Unions at 2000), Vahdettin Karabay (president of DISK: Confederation of Revolutionary Labour Unions, at 2000), Omer Madra (director of AÇIK RADYO: Open Radio), Etyen Mahcupyan (journalist), Ms. Lale Mansur (theatre, film and TV actress), Atilla Maras (president of TYB: Writers Union-Islamic, at 2000), Prof. Ali Nesin (mathematic professor, famous humorist and HR activist Aziz Nesin’s son), Ms. Zuhal Olcay (theatre, film and TV actress), Husnu Ondul (president of IHD: Human Rights Association), Yavuz Önen (president of Human Rights Foundation and former president of The Union of Chambers of Engineers and Architects), Erdal Öz (writer and publisher), Salim Uslu (president of HAK-IS: Confederation of Islamic Labour Unions), Sanar Yurdatapan (composer, spokesperson of the Initiative Freedom of Expression).

2. The court is composed of three judges, one of whom is a regular officer and member of the Military Legal Service.

3. Incal v Turkey, EHHR, No. 41/1997/825/1031, Judgment of 9 June 1998, para 68.

4. Incal v Turkey, para 70-71.

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