Questions and Answers: Freedom of Expression and Language Rights in Turkey

(New York, April 2002) Turkey's human rights record is marred by its severe restrictions on the right to freedom of expression. Individuals in Turkey face prosecution and prison terms merely for using forbidden minority languages or expressing opinions on certain taboo subjects. The European Union indicated that it expected Turkey to resolve its free expression problems by March 2002. Recent months have seen the Turkish government trying to meet that goal with legislative half-measures that have brought little real change. The following are answers to basic questions about respect for the right to free expression and language rights in Turkey.

Which laws affect the right to free expression?

The Turkish Human Rights Association has calculated that Turkish law and regulations contain more than 300 provisions constraining freedom of expression, religion, and association. Many of the repressive provisions found in the Press Law, the Political Parties Law, the Trade Union Law, the Law on Associations, and other legislation were imposed by the military junta after its coup in 1980.

Article 312 of the Turkish criminal code imposes three-year prison sentences for incitement to commit an offence and incitement to religious or racial hatred. Turkish courts have had a very idiosyncratic view of what counts as incitement to hatred. In 1999 the mayor of Istanbul Recep Tayyip Erdogan was sentenced to 10 months' imprisonment under Article 312 for reading a few lines from a poem that had been authorized by the Ministry of Education for use in schools. With his conviction, he had to forfeit his status as mayor. In 2000 Akin Birdal was imprisoned under Article 312 for a speech in which he called for "peace and understanding" between Kurds and Turks. He was obliged to resign his post as president of the Turkish Human Rights Association, as the Law on Associations forbids persons who breach this and several other laws from serving as association officials.

Article 159 of the criminal code imposes three-year prison sentences for insulting "Turkishness, the Republic, the Grand National Assembly, the spiritual personality of the government, ministries, the military, security forces or judiciary of the state." Most of the thirty-seven people known to Human Rights Watch as currently facing proceedings under Article 159 are journalists, but the list also includes three human rights defenders and the president of the Istanbul Chamber of Commerce, who is accused of insulting the National Security Council. In March 2001, nineteen organizers and speakers of a conference on sexual assault and rape in custody were put on trial in Istanbul for "insulting the State authorities." One of those charged was a nurse who had been tortured and raped with a truncheon in police custody in 1992. This trial continues, along with proceedings against the Women Pensioners' Union, which published the conference proceedings in a book entitled Voice and Courage.

Article 8 of the Anti-Terror Law (Law 3713) imposes three-year prison sentences for "separatist propaganda." Despite its name, the Anti-Terror Law punishes many non-violent offences. Those imprisoned under Article 8 for their non-violent statements have included pacifists and people who strongly and publicly criticize political violence. The publisher Fatih Tas was recently prosecuted under Article 8 at Istanbul State Security Court for translating and publishing writings by Noam Chomsky, summarizing the history of human rights violations in southeast Turkey. On February 13, the Court acquitted Tas.

"Undermining the institution of military service" can bring one two years in prison. For "insulting the memory" of Mustafa Kemal Ataturk, the founder of the Turkish republic, one can pay with up to seven and a half years in prison under the Law to Protect Ataturk.

The authorities often decide to use even harsher laws to punish non-violent statements. During the crisis following the killing of twenty-eight prisoners in transfers into small-group isolation at F-type prisons in December 2000, the Justice Ministry announced that statements deemed as supporting the prisoners' hunger-strikes would be prosecuted as "support for an illegal armed organization" under Article 169 of the criminal code. The president and board members of the Ankara branch of the Human Rights Association are currently on trial at Ankara State Security Court for making a public statement about the prison crisis in January 2001. If convicted they face prison sentences of up to seven and a half years. Nineteen participants in a protest against F-type prisons at Ankara University were sentenced to three years and nine months on February 7, 2001. They will serve their sentences in F-type prisons.

What is the state of the Turkish language media?

Turkey has a very lively media. Newspapers and television programs include strong criticism of government and government policy. Discussion programs range freely over almost every conceivable topic. But three topics are potentially hazardous: Turkish secularism and the limits imposed on religion in politics; minority rights and the role of ethnicity in politics; and the role of the military in politics. Statements on such topics may well provoke prosecution and imprisonment.

A clear example of this were last year's convictions and prison sentences imposed on three party leaders: Necmettin Erbakan former president of the banned religion-based Welfare Party; Murat Bozlak, former president of the mainly Kurdish People's Democracy Party (HADEP); and Hasan Celal Guzel, former Minister of State, former Minister of Education, founder and president of the Rebirth Party, and persistent critic of the military's influence in politics. The Turkish government avoided the embarrassment of imprisoning the political leaders by enacting a partial amnesty in December 2001. The threat of such prosecutions is an extremely effective curb on politicians, since conviction for expression offences not only means they may serve a prison sentence, but also that they forever forfeit their right to participate in politics.

Are there restrictions on the Kurdish language media?

There is no legal obstacle to publishing newspapers and magazines in Kurdish, but the authorities confiscate these publications and prosecute their publishers on charges of separatism. In January 2000, Turkish embassies abroad circulated a list of Kurdish magazines, books, music cassettes, and radio stations, which the government claimed was an "important indicator of the wide and free use of the Kurdish language in Turkey." All ten magazines were published legally, but the authorities had repeatedly confiscated five of the ten magazines, detained and imprisoned their staff and distributors, and forbidden any issues of the magazines to enter the mainly Kurdish provinces governed under state of emergency legislation.

The High Council for Radio and Television (RTÜK), on which the military is represented, has deemed radio broadcasting in Kurdish unacceptable. The Law on the Organization and Broadcasts of Radio and Television Stations (Statute 3984) requires all broadcasting to be in Turkish. Non-Turkish languages are permitted if they have "made a contribution to the development of universal culture or works of science," a formulation apparently designed to exclude Kurdish.

Radio stations are constantly testing the limits set by RTÜK. The authorities sometimes tolerate this, but sometimes punish stations with expensive broadcasting bans. Of the ten radio stations on the embassies' list of those providing broadcasts in Kurdish, RTÜK has banned Radio Metro in Diyarbakir for six months, Show Radio in Mardin for nine months, and Radio Karacadag in Sanliurfa for three years. In February 2002, RTÜK banned Gün [Day] Radio in Diyarbakir for two years for broadcasting songs in Kurdish, some of which were critical of the military, but a local court subsequently reversed one of those rulings. In recent months politicians have signalled openness to the prospect of Kurdish language broadcasting. This may in part be an effort to counteract the influence of MED-TV, a Kurdish language station broadcast from Europe via satellite. Many Kurds watch its programs, which are considered sympathetic to the illegal armed group Kurdish Workers' Party (PKK). The Turkish army runs Dicle'nin Sesi (Voice of the Tigris) radio station, broadcasting in two Kurdish dialects. In March the government submitted a bill to parliament in order to permit the state television channel TRT to broadcast an hour's news a day in Kurdish.

Music cassettes in Kurdish can be found legally on open sale in Istanbul and Diyarbakir, but occasional police purges result in mass confiscations of such cassettes. Local governors circulate lists of cassettes banned from sale in city markets. In November 2001 police in Batman, southeast Turkey, presented shopkeepers with a list of ninety-one banned cassettes, the majority in the Kurdish language.

Are there restrictions on Kurdish people freely speaking their language?

Yes. Kurds and members of Turkey's many other ethnic minorities speak their own language at home and in the street and have always done so, but significant restrictions remain in other parts of Turkish life.

For example, people cannot use minority languages in the political arena. Article 81 of the Political Parties Law (imposed by the military junta in 1982) forbids parties from using any language other than Turkish in their written material or at any formal or public meetings. This law is strictly enforced. Public meetings are usually videotaped by the police so that legal action can be taken if there is any breach of the law. For the party, the risk is possible closure by the Constitutional Court. For the individual politician, speaking Kurdish in a public setting can be very hazardous.

When elected to parliament in October 1991 for the Democracy Party (DEP), Leyla Zana took the oath of loyalty in Turkish, as required, but added in Kurdish: "I have completed this formality under duress. I shall struggle so that the Kurdish and Turkish peoples can live peacefully together in a democratic framework." The parliamentary chamber erupted with calls for her arrest and hanging as a separatist and traitor. Leyla Zana's use of Kurdish triggered legal proceedings against her and her DEP colleagues. In 1994, DEP was closed for "separatism" and, after a trial that did not meet international standards for fairness, Ankara State Security Court sentenced Leyla Zana and three other DEP members of parliament to fifteen years' imprisonment for "membership of an armed organization." They are still imprisoned in Ankara Central Closed Prison. In July 2001, the European Court of Human Rights ruled that their trial had been unfair. In January 2002, the General Secretary of the Council of Europe Walter Schwimmer called on Turkey to abide by the ruling of the court and order a new trial.

In late 2001, the Interior Minister sent out a circular requiring provincial governors to ensure that parents name their children "[i]n a manner appropriate to our national culture, moral values and customs" as required by the Civil Registration Law. In February and March, prosecutors opened actions against eight families who had given their children Kurdish names, requiring them to change the names to traditional Turkish names.

What restrictions are placed on the Kurdish language in schools?

Article 42(9) of the Turkish constitution states: "No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law." According to the Foreign Language Education and Teaching Law of October 1983, which regulates the teaching of languages other than Turkish, the National Security Council (comprised of the president, ministers, and leaders of the armed forces) decides which languages may be taught. At present, only English, French, German, Russian, Italian, Spanish, Arabic, Japanese, and Chinese may be taught. This ruling applies to public and private institutions.

Constitutional amendments adopted in October 2001 removed mention of "language forbidden by law" from legal provisions concerning free expression. Thereafter, university students began a campaign for optional courses in Kurdish to be put on the university curriculum, triggering more than 1,000 detentions throughout Turkey during December and January 2002. Scores of students reported that police tortured or otherwise ill-treated them during incommunicado detention.

One hundred and forty people, most of them students, who submitted petitions concerning optional language classes, are now in custody awaiting trial. It is likely that they will be charged under the Anti-Terror Law, because the authorities claim that the PKK is behind the language education campaign. The PKK conducted armed opposition against Turkish security forces in the mainly Kurdish southeast from 1984 until 1999, when the PKK declared a unilateral ceasefire.

Several hundred other students have been suspended for a year or more from higher education because they submitted petitions inviting the university authorities to add Kurdish language to the curriculum.

Prime Minister Bülent Ecevit has said that the teaching of Kurdish language in universities is "impossible," and is no more than a ruse to divide the nation. The Higher Education Council (YÖK), which is responsible for university administration (and on which the military is represented), has so far suspended forty-six students submitting petitions for Kurdish language courses.

Are these restrictions founded in racial tension between Kurds and Turks? Is there a history of intercommunal violence?

No. Even during the years of bitter conflict between the PKK and the government, incidents of violence based on ethnic identity were almost unknown.

Do other ethnic minorities face restrictions on the use of their language?

Prosecutors have at times taken action against publications by the Laz minority, who originate from the Black Sea region and speak a language related to Georgian.

The Turkish government accepts the language rights of the Jewish, Greek and Armenian minorities as being guaranteed by the 1923 Treaty of Lausanne. But the government claims that these are Turkey's only minorities, and that any talk of minority rights beyond this is just separatism.

The Turkish Foreign Ministry website says: "The status of minorities in Turkey has been internationally certified by the 1923 Treaty of Lausanne, according to which there are only non-Muslim minorities in Turkey. It is wrong, according to this definition, to refer to our citizens of Kurdish descent as a 'Kurdish minority.'" The government ignores Article 39(4) of the Treaty of Lausanne, which states that: "[n]o restrictions shall be imposed on the free use by any Turkish national of any language in private intercourse, in commerce, religion, in the press or in publications of any kind or at public meetings."

Are there any moves to remove restrictions on freedom of expression?

Many in the Turkish press, public, and political elite recognize that the limits imposed on free expression are unacceptable. Ahmet Necdet Sezer, a judge and former president of the constitutional court, was elected president of the Turkish Republic in May 2000, after he had made a series of bold speeches calling for the constitution and legal system of Turkey to be "cleansed" of their repressive features. He continued this theme in his inaugural speech: "We must swiftly integrate modern democracy into the fabric of our political life and the principle of rule of law into the fabric of our state structure. We cannot meet the demands of a modern society without abandoning the structure and regulations that bring to mind a police state."

Unfortunately, government ministers who applauded this speech have done almost nothing to dismantle the battery of laws that restrict freedom of expression and inhibit political life. As has happened with every government since the return to civilian rule in 1983, nearly every reform eliminating some restrictive measures has been countered by the introduction of other repressive legislation or the courts' resorting to other existing articles of the criminal code.

In 1991 the government repealed laws outlawing communist beliefs (Articles 141 and 142 of the criminal code) and Islamic fundamentalist ideas (Article 163 of the criminal code). This package of legal changes substantially freed up expression of leftist thought, but simultaneously created a new offence of "separatist propaganda" under Article 8 of the Anti-Terror Law. Prosecutors also began to use Article 312 of the criminal code in place of Article 163.

In 1995 the government slightly amended Article 8 of the Anti-Terror Law, but as a practical matter there were no changes. The academic Fikret Baskaya, for example, is even now serving a one-year four-month sentence under that revised wording because of a newspaper article he wrote concerning the trial of Abdullah Öcalan, leader of the PKK.

On February 6, 2002, the Turkish parliament passed a "mini-democracy package" that altered the wording of Article 312. Under the revised text, incitement can only be punished if it presents "a possible threat to public order." The package also reduced the prison sentences for Article 159 of the criminal code from a maximum of six years to three years. None of the other laws have been amended or repealed.

The judiciary has the power to transform the situation. Expressions of non-violent opinion are safeguarded by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, ratified by Turkey in 1954, and various provisions of the International Covenant on Civil and Political Rights, signed by Turkey in 2000. Many Turkish citizens convicted under the laws mentioned above have applied to the European Court of Human Rights (ECHR) and won their cases.

According to Article 90 of the Turkish Constitution, provisions of international treaties take precedence over Turkish domestic law. Judges should therefore reflect the European Human Rights Convention in their judgments. It is unfortunate that prosecutors and judges, in their interpretations of Turkish law, have persistently ignored the jurisprudence of the ECHR and its succession of judgments against Turkey on matters of free expression.

What is the European Union's position on the use of minority languages and freedom of expression in Turkey?

In 1999 the European Union (E.U.) recognized Turkey as a candidate for membership, with the proviso that Turkey cannot begin negotiations for full membership until it has met the political conditions for membership (the Copenhagen Criteria) that require "stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities." In 2000 the E.U. presented Turkey with its requirements for fulfilment of the criteria in the form of an Accession Partnership document. Turkey answered in 2001 with its National Plan, in which the Turkish government attempted to bargain down the E.U.'s demands.

On the general question of freedom of expression, the E.U. asked that in the "short term" Turkey strengthen legal and constitutional guarantees for the rights of freedom of expression and association in line with Article 10 of the European Convention. In the context of the E.U. accession process, the "short term" is normally interpreted as one year from the presentation of the National Plan, which elapsed for Turkey in March 2002.

Turkey responded by promising only to "review" Article 312 of the criminal law, Article 8 of the Anti-Terror Law and the Press Law. A year later Article 312 has been slightly altered; Article 8 of the Anti-Terror Law and the Press Law remain unchanged.

On the specific issue of minority language broadcasting, the E.U. asked Turkey to remove legal provisions forbidding the use by Turkish citizens of their mother tongue in TV and radio broadcasting. Turkey promised to review the Broadcasting Law, but has failed to do so, and RTÜK continues to impose a large number of closure orders on TV and radio stations on the grounds that they have made separatist broadcasts. In August 2001, RTÜK banned the BBC World Service and the Deutsche Welle on the grounds that their broadcasts "threatened national security."