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 Criminal law professor Vahit Bıçak, in an earlier interview with Today"™s Zaman, said: "The penal code has to be absolutely clear. It is wrong to put in unclear clauses and thereby put the ball in the court of the prosecutor or the judge."
Article 125 of the penal code which criminalizes deeds that 'might offend the honor and dignity"™ of a person appears to be the next candidate to replace Article 301, another ambiguously worded article which, until it was amendment, was frequently used by nationalistic prosecutors to punish criticisms of the official ideology; a recent case filed against a journalist shows.
Late last month Turkey amended the problematic 301, seen as a major obstacle to free speech; however, experts have said there are dozens of similar articles, such as Article 125, in the Constitution that constitute a potential threat to free speech and still others that can easily be manipulated by overzealous judges to restrict freedoms.
A case launched by a prosecutor on Monday against İbrahim Özdabak, a Yeni Asya journalist, proves them to be right. He is facing Article 125-related charges over a cartoon he drew criticizing a case launched against the Justice and Development Party (AK Party), seeking to shut down the ruling party over allegations of anti-secularism. The indictment accuses Özdabak of having insulted Chief Prosecutor of the Supreme Court of Appeals Abdurrahman Yalçınkaya, who filed the charges of anti-secularism against the AK Party in mid-March. The Constitutional Court announced on March 31 that it would hear the case.
The indictment against Özdabak, filed by the Bakırköy Chief Prosecutor"™s Office, alleges that an owl depicted in the cartoon hooting the word "hukuk" (law) and sitting on a tree branch at night is none other than Yalçınkaya. Özdabak"™s cartoon was published on March 19, a few days after the prosecutor had filed the closure case against the ruling party.
Özdabak is also facing charges under Article 126, which considers insulting a person in print without identifying him the same as insulting him directly in cases where the identity of the unnamed individual "can be determined beyond a doubt."
"I told them the owl was a symbol during the investigation when they first summoned me for questioning," Özdabak said, in a brief phone interview with Today"™s Zaman yesterday. "I told them I didn"™t think it was an insult and that it was not meant to hurt or offend anyone. It was witty criticism. He said the owl looked a lot like the prosecutor. I told him I could"™ve made it look like him if I wanted to, but that was not what I had intended," stated Özdabak.
"Then the prosecutor offered a deal. He offered to help me if I admitted that I was guilty. I told them I had done nothing wrong, and so they went ahead and opened this case," said the journalist.
Article 301, which formerly criminalized the ambiguous concept of "Turkishness," had long been criticized by domestic and international rights groups as well as the European Union for stifling freedom of speech. The improved version replaces the term Turkishness with "the Turkish state," and it also makes it a requirement to first request permission from the justice minister to launch a 301-related investigation.
Until last month"™s change, the government had pledged for more than a year to amend the controversial article, used by nationalist-minded prosecutors to take hundreds of intellectuals and journalists, including Nobel laureate Orhan Pamuk, to court for insulting Turkishness.
However, many experts have stated that firstly, the amendment was not satisfactory. Secondly, they had said even if it was removed, other articles would fill its place.
Experts note that most of the time, the ambiguity of the penal code articles is the problem. Criminal law professor Vahit Bıçak, in an earlier interview with Today"™s Zaman, said: "The penal code has to be absolutely clear. It is wrong to put in unclear clauses and thereby put the ball in the court of the prosecutor or the judge."
Lack of clarity itself is a threat to democracy, said Bıçak, who recently provided the only translation of the TCK in the English language. "Ambiguity in the penal code forces a person to impose self-censorship, which keeps free opinions from emerging. In a democracy, those who think differently should be encouraged. In a society which limits its expression, the possibility of creating ideas that would help society move forward is rather weak," he noted.
He also said part of the problem lies in the Turkish public, which is inclined to blow things out of proportion, including opinions that normally are not insidious or even insulting. According to Bıçak, we as a nation are simply "offended too easily." He noted that this is not very helpful in fostering a democratic environment. "Opinions that one does not agree with should be talked about freely," he said.
"There are many other codes, and they all define hundreds of acts as crimes. Two-thirds of the crimes defined in the law are not found in the penal code," Bıçak stated.
21 May 2008, Wednesday
E. BARIŞ ALTINTAŞ, TODAY"™S ZAMAN İSTANBUL |
