As the Ministry of Justice has given permission for investigation, the Batman Heavy Penal Court has ruled that a lawsuit shall be filed against the former board members of the Diyarbakır Bar Association over their declaration entitled “We share the unmitigated great sorrow of Armenian People” published on April 24.
Accordingly, the former Bar Chair and executive board members will be charged under Art. 301 of the Penal Code. Former president of the Diyarbakir Bar Association Ahmet Özmen and the members of the board Mahsum Bati, Nuşin Uysal Ekinci, Cihan Ülsen, Sertaç Buluttekin, Muhammet Neşet Girasun, Serhat Eren, İmran Gökdere, Velat Alan, Ahmet Dağ and Nahit Eren will be tried as per Article 301 of the Turkish Penal Code which reads as follows:
Article 301 |(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.
Article 301 of the Turkish Penal Code has been the source of concern for years. Journalists, lawyers, politicians, academics, authors have been prosecuted and jailed under this provision.
“Application of a range of restrictive laws has led to the imprisonment of dozens of journalists and writers in recent years. Article 301 of the penal code, which prescribes prison terms of six months to two years for “denigration of the Turkish nation,” can be used to punish journalists who state that genocide was committed against the Armenians in 1915, discuss the division of Cyprus, or criticize the security forces. A set of 2008 amendments to the article were largely cosmetic, substituting “Turkish nation” for “Turkishness” and “State of the Turkish Republic” for “Turkish Republic,” and reducing the maximum prison sentence from three years to two. The requirement that the Ministry of Justice would have to approve use of Article 301, however, significantly reduced its application. Very few of those prosecuted under Article 301 receive convictions, but the trials are time-consuming and expensive, and the law exerts a chilling effect on speech.” said Freedom House on Article 301.
The Venice Commission in its option on Art. 301 concluded that this provision be redrafted and further amended in order to make all the concepts used in it sufficiently clear and specific to satisfy the principle of foreseeability and legality. The Commission further said, the Article should be interpreted by the domestic courts in line with the above-mentioned case-law of the ECtHR (Dink v. Turkey). As the ECtHR, the Commission has doubts as to whether the protection of State organs against discredit could be considered as pursuing the legitimate aim of protecting the public order, in the absence of incitement to violence by the perpetrator.
What was said in the declaration which triggered the prosecution of eleven lawyers?
The declaration released by the Diyarbakır Bar Association on April 24 was entitled “We share the unmitigated great sorrow of Armenian People.”
The declaration stated the following in brief:
“Atrocious policies were pursued against Armenian people by the power holders of the time, first by purging the Armenian intellectuals and leaders, then forcing over one million people to begin a journey of death towards the Syrian border by military units and the Intelligence Agency Teşkilat-ı Mahsusa under the name of ‘Law on Deportation’.
“The sorrows suffered were so great that: The ‘genocide’ definiton of the United Nations (UN) Office on Genocide Prevention and the Responsibility to Protect was conceptualized and penned by drawing inspiration from what was done to the Armenian people. The memory of the massacres, exiles and deportation in Armenian-populated İstanbul, Diyarbakır, Van and several other provinces in Anatolia is still alive and we remember all civilian-innocent Armenians of Anatolia who lost their lives in genocide with respect.”
Incumbent administration of the Diyarbakir Association, on 2 December 2019, condemned the decision of prosecution, announced their solidarity with the indicted lawyer and endorsed the statement which triggered the prosecution of eleven lawyers.