Turkey's restriction, Europe's problem

About the author
Daria Vaisman is Caucasus correspondent for Christian Science Monitor and a freelance writer based in Tbilisi and Moscow.

In 1997, Saddam Hussein decided to sue French journalist Jean Daniel for the offence of having written that the then Iraqi president was a "Caligula-style tyrant" who had allowed thousands of children to die. Hussein was surprised to be informed by the Parisian courts that he could sue Daniel not merely (as he had planned) under the civil law, but under a French press law of 1881 which makes it a crime to insult foreign heads of state, whether or not the insult is true.

In 2004, the king of Morocco sued Spanish journalists Rosa Maria Lopez and Josè Luís Gutierrez under a 1982 Protection of Honor, Privacy and Right to a Respectful Image Law. Lopez had written that one of the king's trucks had been seized at a Spanish port and found to be carrying five tons of hashish. Spain's supreme court rejected the journalists' appeal - even though the claim was accurate - on grounds that her article "illegally disturbed His Majesty Hassan II's right to keep his honour."

These trials should sound vaguely familiar to anyone who had followed the case against Turkish novelist Orhan Pamuk (which was eventually dismissed on a legal technicality) or the less-publicised trials against other Turkish writers: among them novelist Elif Shafak (acquitted on 21 September 2006) and Armenian-Turkish journalist Hrant Dink (given a six-month suspended sentence in October 2005, and arraigned on a new set of charges on 25 September 2006).

All have been accused of "insulting Turkishness" under Article 301 of the Turkish penal code, which states that insulting Turkey or its institutions is a crime. Pamuk had mentioned the mass killings of Armenians in 1915 - a Turkish national taboo - in a Swiss newspaper, and Dink had written a newspaper article calling on Armenians to reject "the adulterated part of their Turkish blood."

Daria Vaisman is Caucasus correspondent for Christian Science Monitor and a freelance writer based in Tbilisi and Moscow. She has written for Slate, International Herald Tribune, Foreign Policy, New Republic, and other publications

Also in openDemocracy on writers and politics in Turkey:

Murat Belge, "Love me, or leave me?" The strange case of Orhan Pamuk" (October 2005)

Gunes Murat Tezcur, "The Armenian shadow over Turkey's democratisation" (October 2005)

Hrant Dink, "The water finds its crack: an Armenian in Turkey" (December 2005)

Üstün Bilgen-Reinart, "Hrant Dink: forging an Armenian identity in Turkey" (February 2006)

Anthony Barnett, "Turkish freedom: a report from the frontline" (20 February 2006)

Elif Shahak, "Turkey's home truths" (25 July 2006)

The landscape of insult

The trials in Istanbul expose political and cultural divisions within Turkey over nationalism, secularism, the understanding of the past and the shape of the future. But they also illustrate an even more fundamental gap: between Turkey and Europe. This has to do both with the principle of freedom of speech, and with Europe's own perception of what it means to be European. That is, the trials of Turkish writers are also about Europe. For they highlight the ongoing - if largely unreported - campaign to persuade European states to repeal defamation laws in their own criminal codes.

This campaign has been pursued by a wide range of organisations: the Organisation of Security and Cooperation in Europe (OSCE), the new Human Rights Committee of the United Nations, the European Court of Human Rights, and pressure-groups such as Article 19, the International Press Institute (IPI), and Reporters Without Borders. They invoke the joint declarations (issued in 1999 and 2002) calling for the removal of these laws by three international bodies concerned with freedom of expression: the UN special rapporteur, the OSCE representative on freedom of the media, and the Organisation of American States special rapporteur on freedom of expression.

The campaign continues. An OSCE roundtable in 2003 entitled Ending the Chilling Effect: Working to Repeal Criminal Libel and Insult Laws, saw various experts offer specific recommendations for governments, officials, and legislative and judicial bodies. So far, only one EU country - Cyprus, a member since 2004 - has managed the task. More recently, Article 19 hosted a workshop for European Union justice ministers, explaining to them why the laws should be repealed.

The background of these laws clarifies what is at stake. Insult laws - which the Coordinating Committee of Press Freedom Organisations (CCPFO) refers to as "legal anachronisms" - protect the "honour and dignity" of public officials and representatives of foreign countries (as in the French and Spanish cases), as well as of state symbols and institutions. These laws fall under a broader category of defamation laws that includes, but is not confined to, cases of libel. Such defamation laws, with all the criminal sanctions they carry, are used (the CCPFO says) to restrict investigative reporting and "deprive the public of their right to be fully informed". The CCPFO argues that defamation should always be a matter for civil rather than criminal courts, and be punishable by fines rather than imprisonment.

Europe has inherited these laws from the Roman empire via centuries of feudalism in its heartland territories. In the feudal era, to commit lèse majestè was to insult the state itself as well as its head, the two being synonymous. Since the monarch received his powers from god, he demanded "extraordinary" protection. Over the centuries, an adapted, secularised version of insult laws worked its way into the legislation of all the European monarchies.

Cases brought under these laws were often prosecuted alongside those of treason; the common factor being the fact that the accused citizen has violated the responsibility to protect his country's (monarch's, state's) image. This connection is also apparent in the way that most insult laws came to include a provision that increases the punishment's terms if the insult is uttered outside the country. (This, in fact, is what happened to Orhan Pamuk, whose potential sentence was increased because he had made his remarks while in Switzerland).

In their defence, European Union member-states point out that in the modern era these laws are rarely, if ever, used. Ronald Koven, European representative on the World Press Freedom Committee, told the 2003 roundtable that democratic countries keep these laws on their books as a kind of "sword of Damocles" on the off-chance that they will need them one day. Miklos Haraszti, the well-known Hungarian dissident of the late-communist era who serves as OSCE representative on freedom of the media, says that many the countries just "can't be bothered" to remove them.

Old vs new Europe

But the existence of these laws points to another fundamental divide within Europe: between the established fifteen member-states and the ten which joined in May 2004. Many of the latter (Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia) routinely use criminal defamation laws to prosecute freedom of speech. "In central Asia and in eastern Europe, this is the single biggest reason for jailing journalists", says Haraszti. "What we want to do is make it an issue of solidarity (with other EU countries)."

In contrast to Turkey, these cases do not receive serious publicity, nor have they served as a deterrent for these countries' EU membership. Prosecutions that were already underway at their accession are still continuing. "I get letters from people in these countries pointing out that other EU countries still have (such laws) on their books", says Haraszti. The point is echoed by Toby Mendel, law-programme director of Article 19, who comments that "transition countries" say in effect: "Oh, yes, we have an oppressive law, but that's all right because Germany has it, and France has it, too." Even Ader Sozuer, one of the drafters of the Turkish penal code, responded to questions about Pamuk by highlighting the insult laws still on the statute books of European countries.

The cases come to court with surprising frequency. OSCE's 2005 Libel and Insult Laws: a matrix on where we stand and what we would like to achieve, reports that fifteen people in Estonia and sixty-five in Hungary served prison sentences for defamation, libel, or insult in 2002-04. In Poland, reputedly the most restrictive country in the European Union over freedom of speech, the numbers accused under defamation laws increased from 6,272 in 2002 to 7,218 people in 2003.

The legislative processes also give grounds for concern. In 1996, Croatia introduced an insult law, stipulating both fines and jail sentences for slandering or insulting the national president or other heads of states. In 2001, Slovakia's parliament rejected an amendment that would have removed existing insult laws from its penal code (a move said to be have been pushed by the president himself).

A clearer parallel to the Turkish cases is that of the Polish communist-era media apparatchik turned acerbic satirist, and editor of the satirical weekly Nie, Jerzy Urban. Urban was prosecuted for writing an article about Pope John Paul II (entitled "Walking Sado-Masochism"), and faced between three months and three years in jail. Haraszti tells me that Urban had written the article with the specific goal of highlighting Poland's restrictions on speech. "He said, 'I did it so that the human-rights world would defend me.' It was a clear provocation, and yet Poland went ahead and prosecuted him."

"It's hugely embarrassing", says IPI's David Dadge. "The EU is actually weakening its argument in its negotiation with Turkey as it starts the accension process. It is very difficult that Turkey should meet benchmarks in regards to human rights while (other European states) flaunt those very benchmarks."

Europe's past, Turkey's future

The EU seems to be asking Turkey to play by rules that its own members break, and thus be guilty of hypocrisy. This implies that influential elements within the EU have as little real interest in seeing Turkey join as some factions in Turkey itself, and are simply using the freedom-of-speech cases to undermine Turkey's credentials. But there is another explanation for Europe's approach: that it both genuinely believes that Turkey's record on free speech and human rights is severely deficient, but that what really angers it is the content of what's being restricted rather than the principle of freedom of speech.

The David Irving case is evidence for this point. Irving, a British historian who has made a high-profile career from casting doubts about the Nazi holocaust and Hitler's knowledge of and responsibility for it, was sentenced to three years in an Austrian jail for holocaust-denial in February 2006. This was at the very time when Orhan Pamuk and Hrant Dink were being tried effectively for stating that another genocide (of Armenians) had occurred. The contradiction between Europe's protests and the actions of one of its member-states seemed stark, and shaming. But the Irving-Pamuk "contradiction", when more closely inspected, reveals the more fundamental dilemma of free speech in a democracy that Europe is grappling with: that free speech as a principle undermines the impulse to forbid what is deemed abhorrent.

In this light, the more deeply shared element of the Irving and the Pamuk-Dink-Shafak cases is Europe's discomfort with denial of the past. The idea that atonement for sins is an essential qualification to be a democracy (as evidenced in notions of "collective guilt", the genre of holocaust studies, and even the fashion among some young Germans to wear the Star of David symbol) may owe as much to modern, collective psychological conditions as to a true engagement with history, but it is effective nonetheless. After all, Germany's readiness to accept responsibility for the holocaust was the key to its rehabilitation in post-war Europe.

Against this background, official Turkey's adamant and consistent refusal openly to discuss the events of 1915 challenges a formative tenet of the EU, a shared commitment to defend a series of core human rights and to denounce their violation. Even more penetratingly, Turkey's attitude reminds Europe of its own history of colonisation, slavery, war, and genocide.

Europe can dismiss or ignore the ongoing criminal defamation cases in the newer EU countries (most of which involve accusations of corruption) as minor; but the denial of genocide is far more serious. Corruption is regrettable, a social ill - but prosecutions that appear to endorse official suppression of the past and discussion of it strike at the heart of modern European values.

In protecting its history from scrutiny as much as in restricting free speech, Turkey will have its work cut out. "(Article 301) has become a symbolic fight inside Turkey, the same way that flag-burning is an issue in the United States", says Miklos Haraszti. It is a fight that Turkey, if it wants to be part of the European club, won't be able to win.