Esra Demir-Gürsel: A Brief Note on the “Crime” Allegedly Committed by the Academics for Peace: Propaganda for a Terrorist Organization or Degrading the State of Turkish Republic?
by Esra Demir-Gürsel, Ph.D.
Immediately after the release of the peace petition by the Academics for Peace on January 11, 2016, high-rank state officials and the media accused the signatories of the petition of making propaganda in support of a terrorist organization and of insulting the state. When a criminal investigation was initiated and the signatories were invited by the police to give their statements, the accusation against them was not yet defined. However, the questions posed during the police interrogation clearly indicated that the investigation was based on terrorism-related charges. Upon the objections of signatory academics and their legal representatives against giving their statements without having been informed about the charge, it was made clear by the Public Prosecutor that the police would interrogate signatory academics on suspicion of terrorist propaganda under Article 7/2 of the Anti-Terror Act. The relevant part of Article 7/2 reads as follows:
“Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years. If this crime is committed through means of media, the penalty shall be increased by one half …”
In the meantime, after a press statement organized by the Academics for Peace on March 10, 2016, condemning the harassment of signatory academics and affirming their commitment to the wording of the petition of January 2016, four academics who had read the statement were first arrested after the police had raided their houses and then held in pre-trial detention for 40 days. The indictment accused them under Article 7/2 of the Anti-Terror Act. However, at the first hearing on April 22, 2016, the Public Prosecutor announced that he intended to launch a new investigation under Article 301 of the Penal Code. He requested the court to stop the prosecution under Article 7/2 pending the required permission by the Minister of Justice for an investigation on charges under Article 301 of the Penal Code.
The infamous Article 301 of the Penal Code prohibits “degrading the Turkish Nation and the State of the Republic of Turkey and the organs and institutions of the State.” It reads as follows:
“1. A person who publicly degrades the Turkish nation, the State of the Republic of Turkey, the Grand National Assembly of Turkey, the Government of the Republic of Turkey or the judicial bodies of the State, shall be sentenced to a penalty of imprisonment for a term of six months to two years.
2. A person who publicly degrades the military or security organisations of the State shall be sentenced to a penalty in accordance with paragraph 1 above.
3. The expression of an opinion for the purpose of criticism does not constitute an offence.
4. The conduct of an investigation into such an offence shall be subject to the permission of the Minister of Justice.”
The 13th Division of Istanbul Assize Court decided to release four defendants on bail, and to stop their prosecution for “making propaganda for a terrorist organization” until the Minister decides whether an investigation into this offence is permissible as required under Article 301/4. Until the end of November 2017, no such permission had seemed to be granted and all later hearings had been adjourned for the lack of a decision of the Minister of Justice.
The police, on the other hand, continued to interrogate the other signatories under Article 7/2 of the Anti-Terror Act. For unknown reasons, these interrogations have not been extended to all signatories. Academics based in institutions abroad or academics that had signed the peace petition after the first release of it have never been invited to give their statements. While awaiting a decision by the Ministry of Justice in relation to the request for permission for an investigation under Article 301 of the Penal Code, there was a concomitant silence about the fate of the criminal investigation against the other signatories, which lasted almost one and a half year after the end of the police interrogations.
The silence on the part of the state ended in early October 2017, when the signatories started to receive notifications for court hearings one by one following the acceptance of the indictments by several assize courts that charge them under Article 7/2 of the Anti-Terror Act. Furthermore, on December 1, the legal representatives of four signatory academics found out that the permission of the Minister of Justice for an investigation under Article 301 by a decision of September 15, 2017, had already been sent to the Office of the Istanbul Chief Public Prosecutor on September 22, 2017.
The first set of hearings of signatory academics began on December 5 and continued on December 7, 2017. Over 40 signatories appeared before five different branches of the Istanbul Assize Court. The focal point of all the hearings was the lack of clarity regarding the charges. Along with the requests for immediate acquittal, defense lawyers underlined the uncertainty surrounding the definition of the charges by pointing to the decision of the Minister to grant permission for an investigation under Article 301 in the case against four academics. Lawyers of some signatories requested the courts to merge the cases of all academics, including the one viewed before the 13th Assize Court against four signatories reading the March 10 statement. They emphasized the need to avoid inconsistencies in the charges on which the prosecution will proceed and in the conclusions to be reached by different courts in relation to one identical act.
On similar grounds, the courts dismissed the requests for merging of the cases, as well as requests (made on behalf of some signatories) to ask for permission from the Minister of Justice to change the charge from “terrorist propaganda” to “insulting the state” and the requests for immediate acquittal of the defendants. In their dismissals, some of the courts emphasized that these requests can only be decided upon after the assessment of the relevant evidence and the questioning of the defendants. The hearings of all of those who stood trial on December 5 and 7 have been adjourned to after December 22, 2017 for the preparation of defenses.
The flow of events recounted above highlights the lack of clarity regarding the charges brought against the signatory academics, only exacerbated by the Ministry of Justice’s decision. This uncertainty surrounding the legal definition of the charges owes at least partly to the fact that the acts of academics who signed the petition cannot be considered “propaganda for a terrorist organization” or “degrading Turkish nation, the State or State institutions” under domestic law.
In order to define an act as propaganda for a terrorist organization under Article 7/2 of the Anti-Teror Act, there must be an act having the characteristics of propaganda, which carried out in such a way that legitimizes or praises the coercive, violent and threatening actions of terrorist organizations or encourages the employment of these methods.
In the peace petition, there is no single expression having the characteristics of propaganda in favor of a terrorist organization. Neither does it legitimize or praise the coercive, violent and threatening methods of a terrorist organization nor does it encourage the employment of such methods. This charge against the four signatory academics who had read the March 10 press statement and against other signatories has relied on three main arguments, which are briefly as follows:
1- The suspects’ actions align with the orders of Bese Hozat, the co-president of the PKK/KCK’s executive committee, and support the terrorist organization, as they followed the statement by Bese Hozat, in which she urged the “intellectuals and democrats to support the self-governments” declared in some cities and towns in the East and Southeast of the country.
2- The petition presents the state as the responsible body and perpetrator of the incidents, whereas it included no denunciation of the PKK’s acts and decisions, which is the actual perpetrator and source of violence in the region. Thereby, the terrorist organization and the self-government declared in the region by its constituencies have been legitimized under the name of a “peace declaration.”
3- The petition accuses the state of carrying out “a deliberate and planned massacre”, and implementing “a deliberate policy of deportation” in the region.
With regard to the first argument, there is not even a single evidence indicating that the petition was released following the orders of the PKK. In the absence of such evidence, it is simply not enough to forward such a serious accusation based on nothing but the temporal proximity of two distinct acts. Nor is it possible to find any association between the contents of said statement and the petition.
With regard to the second argument, the wording of Article 7/2 explicitly requires “propaganda”, a positive action, in support of a terrorist organization in a way that legitimizes or encourages its coercive, violent or threatening acts or methods. This article, therefore, cannot be interpreted as including a possibility for the commission of this offence by remaining silent on a certain issue. A contrary interpretation of the article would necessarily mean to widening the scope of it to an extent that would give way to arbitrary interventions on freedom of expression and would severely prejudice its legal foreseeability. The peace petition addressed the state about the violations of human rights and breaches of international law, as the reports and statements of several local and international institutions at the time indicated and expressed grave concern for the severity of interventions on the lives and well-being of the people living in the region during round-the-clock curfews.
As for the third argument, some expressions referred to in the petition, such as “massacre” and “policy of deportation” remain within the scope of freedom of expression regardless of how offensive, shocking or disturbing they are considered by the Government. Both the Constitutional Court of Turkey and the European Court of Human Rights issued several judgments affirming that criminal sanctions against such expressions that accuse the state of similar offenses using similar terms, in the absence of an incitement to violence or hatred, amount to violations of freedom of expression. Both courts have set wider limits of criticism for expressions concerning the acts and policies of the Government. Furthermore, the Constitutional Court of Turkey has held that judging a text by selecting certain words from it itself would violate the freedom of expression.
As to the charge under Article 301 of the Penal Code, the act of signing the petition cannot be considered an offence under the third paragraph of the article, which explicitly excludes from its scope “expressions of an opinion for the purpose of criticism”. Having assessed the ambiguity of the wording and the vague scope of this article, the Venice Commission has aptly warned against the application of it “to penalise harsh criticism of governmental policies, which would chill public debate,” with the exception of statements amounting to “incitement to violence or hatred.” In this regard, the peace petition can in no way be interpreted as constituting incitement to violence or hatred. It explicitly urges the Turkish Government to use peaceful means for the solution of the problem. It thus rather constituted a harsh criticism of the curfew measures and the way the military operations were conducted at the time. The round-the-clock curfews declared in the region constituted a vital issue at the time that needed to be brought to the attention of the public in the absence of a fair and impartial media coverage of the situation in the region partly because of the difficulty to access reliable information due to the severe limitations on the press and the media.
Furthermore, Article 301 of the Penal Code should be interpreted as having no applicability in domestic law following the judgment of the European Court of Human Rights in Altuğ Taner Akçam v. Turkey. In this judgment, the European Court of Human Rights concluded that Article 301 of the Penal Code cannot be considered legally foreseeable for “the scope of the terms under Article 301 of the Penal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression… As is clear from the number of investigations and prosecutions brought under this provision (…that) any opinion or idea that is regarded as offensive, shocking or disturbing can easily be the subject of a criminal investigation by public prosecutors.” According to the Court, the requirement of the Ministry’s permission for an investigation under this Article was not a reliable safeguard, as “any political change in time might affect the interpretative attitudes of the Ministry of Justice and open the way for arbitrary prosecutions”
Under Article 90/5 of the Constitution of Turkey, in the case of a conflict between domestic legal norms and the international treaties on human rights and fundamental freedoms, the latter shall prevail. According to the interpretation of the Constitutional Court of Turkey on Article 90/5, domestic courts have an obligation to directly apply the Convention and the Court’s case-law instead of domestic laws that have no applicability by virtue of their conflict with the international treaties on human rights. As Article 301 conflicts with Article 10 of the European Convention on Human Rights and the judgment of the European Court of Human Rights in Altuğ Taner Akçam v. Turkey, the domestic courts are under a legal obligation to directly apply the Convention and the Court’s case-law in the case of signatory academics.
The legal representatives of the four signatory academics lodged an appeal against the interim decision of the Assize Court to stop the proceedings under Article 7/2 pending the permission required for an investigation to be conducted under Article 301 on the grounds that are explained briefly above. In their appeal, they reminded the Assize Court of its obligation to apply directly the European Convention on Human Rights, which would require it to decide in line with the judgment in Altuğ Taner Akçam and thereby to dismiss the prosecutor’s request. In the same appeal, the legal representatives also argued that in the absence of an act falling within the scope of Article 7/2 of the Anti-Terror Act, the Assize Court should have given a judgment of immediate acquittal instead of a decision to stop the proceedings pending the required permission for investigation. The appeal, however, was dismissed by the Assize Court.
Against this background, it is difficult to speculate on the results of these two sets of trials. One of the reasons behind the decision to commence legal proceedings against all other signatories based on terrorist propaganda instead of insulting the state may partly be motivated by an effort to avoid the lengthy process of obtaining a permission from the Minister of Justice as was the case in the trial against the other four signatory academics. This can be interpreted as an indicator of a will on the part of the state to speed up the process, and in turn, may mean that we will not need to wait long until the assize courts come to conclusions in the trials against signatory academics that were commenced on an individual basis. Yet, it is equally possible that the trials will hang over the heads of the signatory academics for many years to come like the sword of Damocles.
Şerife Ceren Uysal and Oya Meriç Eyüpoğlu, two of the legal representatives of the signatory academics, draw attention to the bizarre possibility that signatories, who are being charged based on the same act can be prosecuted and convicted under different offences. In the absence of legal certainty and foreseeability, an eventual acquittal is also a possibility either under Article 7/2 of the Anti-Terror Act or Article 301 of the Penal Code. Yet, even in that case, the threat of punishment itself, which was kept alive by various means by the state since the release of the petition in January 2016, indisputably has constituted a serious violation of the freedom of expression of signatory academics. The continuing persecution and threat of punishment faced by signatory academics has unfortunately and undeniably had a severe chilling effect on the public debate of the Kurdish issue within the academic circles in the country as well as in the broader society.
 The petition was released under the title of “We will not be a party to this crime.” Since then, it has come to known as “the peace petition.”
 Public Prosecutors, who prepared the indictment and who later participated in the hearing and requested the Criminal Court to ask the Ministry of Justice for permission for an investigation under Article 301 of the Penal Code were two different prosecutors.
 For detailed accounts on the hearings see Beyza Kural, “Hearings of Ten Academics Adjourned to April 12,” Bianet, 5 December 2017, available at: https://bianet.org/english/human-rights/192145-hearings-of-10-academics-adjourned-to-april-12[Last access on 07.12.2017]; Beyza Kural-Tansu Pişkin, “Hearings of 36 Academics Signing Peace Declaration: No Acquittal, Hearings Adjourned,” Bianet, 7 December 2017, Bianet, 7 December 2017, available at: https://bianet.org/english/human-rights/192218-hearings-of-36-academics-signing-peace-declaration-no-acquittal-hearings-adjourned [Last access on 07.12.2017].
 See the statements by Article 19, “Turkey: Academics for Peace Trials violate free expression,” 7 December 2017, available at: https://www.article19.org/resources/turkey-academics-peace-trials-violate-free-expression/ [Last access on 07.12.2017] and Human Rights Watch, “Turkey: Academics on Trial for Signing Petition,” 5 December 2017, available at https://www.hrw.org/news/2017/12/05/turkey-academics-trial-signing-petition [Last access on 07.12.2017].
 See the decisions of the Court of Cassation, in which it ruled that expressions having the characteristics of propaganda in favor of a terrorist organization but not legitimizing or praising the violent, coercive and threatening methods of it fall within the scope of freedom of expression: The Sixteenth Penal Chamber of the Court of Cassation, Decision no. 2015/2304, 11.06.2015; The Sixteenth Penal Chamber of the Court of Cassation, Decision no. 2015/2316, 17.07.2015.
 Full text of the petition in English is available at this blog.
 For the full list of accusations in detail see the (summary) translations of indictments that are available at this blog.
 See, for example: Diyarbakır Bar Association, Curfew in Cizre: A Survey Report, 21 September 2015, available at http://www.diyarbakirbarosu.org.tr/filemanager/cizre%20raporu%20ingilizce%20(1).pdf [Last access on 26.11.2017]; Human Rights Watch, Turkey: Mounting Security Operation Deaths, 22 December 2015, available at https://www.hrw.org/news/2015/12/22/turkey-mounting-security-operation-deaths [Last access on 26.11.2017]; Human Rights Foundation of Turkey, Curfews in Turkey between 16 August 2015-12 December 2015, available at http://en.tihv.org.tr/curfews-in-turkey-between-16-august-2015-12-december-2015/ [Last access on 26.11.2017].
 See the following judgments of the Constitutional Court of Turkey: Abdullah Öcalan, 2013/409, 25.06.2014; Bejder Ro Amed, 2013/7363, 16.04.2015; İbrahim Bilmez, 2013/434, 26.02.2015.
 See the following judgments of the European Court of Human Rights: Ceylan v. Turkey, 23556/94, 08.07.1999; Karakoç and Others v. Turkey, 27692/95 28138/95 28498/95, 15.10.2002; Mehmet Hatip Dicle v. Turkey, 9858/04, 15.10.2003; Karkın v. Turkey, 43928/98, 23.09.2003.
 The Constitutional Court of Turkey, Bekir Coşkun, 2014/12151, Karar Tarihi: 04.06.2015, § 66; the European Court of Human Rights, Castells v. Spain, 11798/85, 23.04.1992, § 46.
 The Constitutional Court of Turkey, Fatih Taş, 2013/1461, 12.11.2014, § 106; Mehmet Ali Aydınlar 2013/9343, 4.6.2015, § 82.
 European Comission for Democracy Through Law (Venice Commission), Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey, Opinion no. 831/2015, 15.03.2016, available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)002-e [Last access on 24.11.2017].
 For a detailed analysis on the crackdown on media, see Human Rights Watch, Silencing Turkey’s Media: The Government’s Deepening Assault on Critical Journalism, 15 December 2016, available at https://www.hrw.org/report/2016/12/15/silencing-turkeys-media/governments-deepening-assault-critical-journalism [Last access on 26.11.2017].
 Altuğ Taner Akçam v. Turkey, 27520/07, 25.10.2011. See Berke Özenç, “Barış Bildirisi 301’den de Yargılanamaz,” Bianet, 03.05.2016, available at https://bianet.org/bianet/egitim/174400-baris-bildirisi-301-den-de-yargilanamaz [Last access on 29.11.2017].
 Altuğ Taner Akçam v. Turkey, § 93.
 Altuğ Taner Akçam v. Turkey, § 94.
 The Constitutional Court of Turkey, Sevim Akat Ekşi, 2013/2187, 19.12.2013, §§ 44-45 concerning an individual application on the rights of women to retain their surnames after marriage.
 Personal correspondence with Şerife Ceren Uysal, 2 December 2017.
 Interview with Oya Meriç Eyüboğlu, “Barış Akademisyenleri Ayrı Yargılansa da Bir Karar Bütün Davaları Etkileyecek,” by Pınar Tarcan, available at https://bianet.org/bianet/ifade-ozgurlugu/192053-baris-akademisyenleri-yalnizlastirilmak-icin-tek-tek-yargilaniyor [Last access on 03.13.2017]. English translation of the interview with the title “Though Academics for Peace Tried Separately, One Decision Will Affect the Whole Case” is available at this blog.