Committee to Protect Journalists
As Turkish nationalists resist European tilt, free expression is a victim
By Robert Mahoney
Posted March 16, 2006
A run-down courthouse in a concrete gray, working class suburb of Istanbul has become a battleground for nationalists determined to stop Turkey's engagement with Europe from leading to political and economic marriage.
The battle became quite literal when the nationalists targeted five well-known newspaper columnists in a free expression trial in February. It is not often that police in full riot gear have to clear lawyers from a courtroom. But that's what the judge ordered security forces to do at the trial's February 7 opening, to the barely concealed satisfaction of the defendants and the amazement of foreign observers who packed the tiny courtroom.
The accused believe their prosecution, which will resume in April, could be a turning point in Turkey's debate about accelerating its sometimes glacial progress toward a fully functioning Western-style democracy complete with liberties such as freedom of speech and freedom of the press.
Opponents of European Union membership say the cost of joining the Brussels-based group of 25 states is too high for this predominantly Muslim nation of 73 million. Fearing a loss of Turkish independence and national identity, they have sought out sympathetic public prosecutors across the country to take the fight to journalists, writers, and academics who favor EU membership. The nationalists challenge writings or public comment they dislike, filing complaints based on loosely worded laws that criminalize the denigration of the Turkish state, its identity, and its institutions, journalists, human rights activists, and academics told the Committee to Protect Journalists.
The five journalists who sat quietly in the dock amid the scuffles between police and nationalist lawyers were Murat Belge, Haluk Sahin, Erol Katircioglu, and Ismet Berkan of the daily Radikal, and Hasan Cemal of the daily Milliyet. On December 2, 2005, they were charged under Article 288 of the penal code with attempting to influence the outcome of judicial proceedings through their writing. All except Berkan were also charged under controversial Article 301 of the penal code with insulting "Turkishness." If convicted, they could face prison terms of six months to 10 years. After more than two hours of uproar at the trial's opening, the judge adjourned the case until April 11.
Article 301 was the statute the nationalists recently used against Orhan Pamuk, the country's most famous novelist. The case against Pamuk--who spoke in a Swiss newspaper interview about the World War I killing of Armenians and Turkey's treatment of its Kurdish minority--was dropped in January amid a wave of protest from activists and lawmakers within the European Union and many of Turkey's NATO partners.
The charges against the five journalists stem from articles they wrote last year challenging the decision of an Istanbul administrative court to ban an academic conference on the mass killing of Armenians under the Ottoman Empire from 1915 to 1917. The Ottoman authorities, allied with imperial Germany, killed and forcibly relocated Armenians whom they accused of sympathizing with Russia.
The Armenian massacre is still taboo in public discourse in Turkey. Armenians contend that the killings constitute the first genocide of the 20th century, a characterization that Turkey rejects. The columns published in Radikal and Milliyet objected to the court's interference in academic freedom by preventing the conference from taking place at two Istanbul universities, in May and then in September. Organizers finally held the conference on September 24, 2005, by moving it suddenly to a third location, Bilgi University. Three of the five defendants teach at Bilgi.
"Turkey is going through a strong nationalist backlash," said defendant Sahin, a professor of journalism at Bilgi and a Radikal columnist. He said nationalist lawyers shop around until they find a prosecutor willing to take on such cases, which are typically filed under Articles 301 or 288. Such venue shopping, he said, led to the prosecution of the five journalists in the outlying district of Bagcilar rather than in a downtown court.
Hundreds of riot police ringed the Bagcilar courthouse for the February 7 proceedings to prevent nationalist protestors from repeating the jostling and egg-throwing that greeted Pamuk's emergence from court last year. Instead, the demonstrations erupted inside the courtroom itself beneath a golden mask of Mustafa Kemal Ataturk, the founder of modern, secular Turkey, whose image adorns every public building. The prosecutor who brought the indictment at the prompting of the nationalist Turkish Union of Lawyers did not utter a word.
More than a dozen black-robed nationalist lawyers and their leader, Kemal Kerincsiz, who initiated the Pamuk case, tried to take over the proceedings, repeatedly ignoring the judge's warnings and instructions to be quiet. The lawyers had no formal role in the prosecution other than to answer the judge's questions about the complaint they had filed with the prosecution.
Kerincsiz jabbed his finger at foreign observers in the court, labeling them colonialists and calling for them to be thrown out. He singled out European Parliament member Joost Lagendijk, a Dutch lawmaker who had himself been targeted for recent prosecution. The nationalists had sought unsuccessfully to bring a case against Lagendijk for insulting Turkey's armed forces. He had suggested that after Ankara opened a dialogue with Kurds seeking autonomy in southeast Turkey, security forces provoked the rebels into action in order to enhance the army's importance.
Lagendijk, who monitored the hearing for Brussels, said that convictions of the five journalists would "have consequences for the EU accession process." That, of course, is what the nationalists want. "They think that the legal system is the soft underbelly of the state machinery. And if they want to stop the slide toward Europe, then that's the place for the brakes," Sahin said.
For 40 years Turkey has been forging closer political, economic, and social ties with Europe. But the opening last October of formal accession negotiations with Brussels has galvanized those who feel Turkey has gone far enough in reforming itself along Western lines to pass the EU membership test.
The opposition to the EU does not come from the moderate, Islamist-based government of Prime Minister Recep Tayyip Erdogan but from conservative, secular nationalist forces, the political heirs of Ataturk. Turks sometimes refer to these forces as the "deep state," or "the state within the state," the legacy of a centrally controlled social and political structure with roots going back to the Ottoman Empire. The elected government runs the ministries, but the deep state works as a permanent political force drawing support from sections of the army, security forces, and parts of the justice and interior ministries, according to political commentators.
The Turkish Union of Lawyers acts as the spearhead of the deep state's onslaught against journalists and writers. Its leader, Kerincsiz, is associated with the National Movement Party (MHP), a long-established right-wing Turkish nationalist party. The party won 8.3 percent of the vote in 2002 parliamentary elections, just below the 10 percent threshold needed to win a seat in the legislature.
"The nationalists are not strong, but they are radically driven people. They have shadow support," said Berkan, one of the five defendants, referring to the deep state. "The nationalists know they have a weak case. What they want is the publicity."
Sanar Yurdatapan, head of the human rights group Initiative for Freedom of Expression, said the deep state exerts considerable influence through the civil service and security forces, swaying appointments to key bodies such as those regulating state broadcasting and higher education. The chief of staff and the commanders of the army, navy, air force and gendarmerie also sit on the National Security Council alongside five to seven ministers. The council advises the government on virtually every aspect of national life, advice which the prime minister seldom ignores.
Journalists say the influence of the deep state makes it difficult to write critically about five major areas: Ataturk, the Kurds, the security forces, the Armenian killings, and the Turkish presence in northern Cyprus.
The scale of the nationalist assault on the press was on display in the Bagcilar courthouse for those who arrived early. On the same day that the world's press covered the opening of the trial of the five prominent columnists, another journalist, Nese Duzel of Radikal, was before the same court on charges of "disseminating terrorist propaganda," in part because of an interview she conducted with former Kurdish MP Orhan Dogan.
In all, 10 free expression cases were heard that day in Turkish courts, journalist and human rights activist Nadire Mater said after the hearing. Figures compiled in February by Mater's press freedom organization, Bia, show that since the new Turkish Penal Code went into effect on June 1, 2005, cases have been brought against 29 journalists under Article 301. Eight have been convicted, and some trials are still continuing.
Seventeen journalists who discussed human rights cases, the Armenian conference ban case, and torture cases, have been charged with attempting to influence court decisions under Article 288 of the penal code and other press law provisions, according to Bia.
"The most import thing about the prosecution of these five columnists is that they are important figures, and there has been a big fuss out there in Turkey and the world about them," said Turgay Olcayto, secretary-general of the Association of Turkish Journalists. "Other journalists are prosecuted all the time and go relatively unnoticed." Journalists are typically fined upon conviction, although CPJ has documented one Turkish journalist imprisoned for his work.
Mater contends that the onslaught of prosecutions has had an intimidating effect on journalism in the country. "These cases lead to self-censorship. Before you write about issues like the army or the Kurds you will think two or three times," said Mater, who was acquitted in a high-profile 2000 case of insulting the Turkish military in a book of interviews with former conscripts of the civil conflict in southeast Turkey.
The independent press itself, concentrated in the hands of four major conglomerates, is largely pro-EU and reflects the views of Turkish private enterprise, which sees its future inside the vast European market. "It's ironic," said Olcayto, reflecting on the growing gap between big business and the nationalists whom it once supported. "Twenty years ago we were defending journalists for going against the views of the newspaper proprietors. Now we are defending them for agreeing with the owners."
Last year, the Erdogan government, seeking to balance the opposing demands of nationalists and reformers, amended media provisions in the penal code that stood in the way of EU membership. Fikret Ilkiz, a lawyer and advisor to media companies, said the government could not scrap the laws due to nationalist opposition, so it hastily rewrote them to meet EU deadlines. The rush resulted in flaws and wooly language, he said, which the nationalist lawyers have been able to exploit. For instance, the government replaced Article 159 of the penal code with Article 301 as part of an overhaul that reduced punishments for certain offenses. But journalists and writers are still silenced under Article 301 as prosecutors interpret a range of political and social criticism as falling under the definition of denigration of the state.
"We tried to tell them that the amendments to the press laws that they were bringing in were vague and could be exploited, and they told us not to worry, no cases would be opened. But look what has happened," Ilkiz said.
Yurdatapan, the human rights activist, said the government hoped that prosecutors simply would not bring cases under the new law or, if they did, that judges would dismiss them before they went to trial. That has happened in some instances, but the statutes remain on the books and pose a threat to free expression. "Any official with bad intentions can still find a pretext to stop freedom of expression," Yurdatapan said.
The government in Ankara declined to comment on the prosecution of the Radikal and Millyet columnists. "When the judicial process is still going on it is not proper to comment," Foreign Ministry deputy spokesman Murat Ozcelik told CPJ. "This government is determined to respect press freedom and freedom of expression. Let's wait and see. We respect the results of the judiciary."
Most journalists and rights activists are united in wanting Article 301 and similar statutes eliminated, believing that the judiciary is not strong enough to resist nationalists who are exploiting the law to make a political point. Sahin said international coverage of the Bagcilar trial had helped the effort. "Our case is a test case; we are glad this case has been brought," he said. "We may serve a good purpose and open the way for change in the articles of the penal code."
Journalists have also taken heart from the dismissal of the Pamuk case and an appellate court's February 24 decision to overturn the conviction of Armenian-Turkish journalist Hrant Dink on a charge of insulting Turkishness. The appeals court ordered a new trial for Dink.
Journalists acknowledge that Turkey has come a long way since the military rule of the 1980s in unshackling the private print media. Yet there is distance in meeting Western European standards of press freedom. "This is a fight for democracy and the rule of law," said defendant Cemal, who was targeted, some journalists believe, because he comes from a prominent nationalist family. His grandfather was a senior military commander in the Ottoman Empire.
"The general trend has been for the better with the start of negotiations with the European Union because Turkey has been adapting to European law," Cemal told CPJ after the February 7 proceeding. "The events we have seen this morning indicated that the fight for these values takes time. In April I expect an acquittal."
Sahin said the nationalists may have taken on more than they can handle in this case-- but he urged caution as well. "There is a tug of war in Turkey right now between those who favor democratic and EU values and those who are afraid of losing their leverage--the hardcore nationalists who are willing to do anything to stop that trend.
"There will be relapses, but things are moving in the right direction. Now we have to move toward reform without playing into the hands of nationalists."
Robert Mahoney is senior editor for the Committee to Protect Journalists.