Human Rights Court Rules Turkey Cannot Criminalize Genocide Recognition


Prof. Taner Akcam

STRASBOURG—The European Court of Human Rights on Tuesday unanimously ruled that the recognition of the Armenian Genocide cannot be criminalized in Turkey. The verdict stemmed from a case brought to the court by noted scholar Taner Akcam.

In the case Taner Akcam vs. Turkey, the court ruled that Turkey’s ongoing criminal prosecution of scholarship on the Armenian Genocide issue constituted a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The court ruled that the Turkish law meant the Akcam lives in constant fear of prosecution for his views about the vents of 1915. In his suit Akcam said that the fear of prosecution for his views on the Armenian issue had caused him considerable stress and anxiety and had even made him stop writing on the subject.

Akçam, who is an associate professor at the Robert Aram, Marianne Kaloosdian and Stephen and Marion Mugar Chair in Armenian Genocide Studies at Clark University in Worcester, Mass., is a Turkish and German national who was born in 1953. As a professor of history, he researches and publishes extensively on the historical events of 1915 concerning the Armenian population in the Ottoman Empire. The Republic of Turkey, one of the successor states of the Ottoman Empire, does not recognize the word “genocide” as an accurate description of events. Affirming the Armenian issue as “genocide” is considered by some (especially extremist or ultranationalist groups) as a denigration of “Turkishness” (Türklük), which is a criminal offence punishable under Article 301 of the Turkish Criminal Code by a term of imprisonment of six months to two or three years. Amendments have been introduced following a number of controversial cases and criminal investigations brought against such prominent Turkish writers and journalists as Elif Şafak, Orhan Pamuk and Hrant Dink for their opinions on the Armenian issue.

Notably, in October 2005 Hrant Dink, editor of Agos, a bilingual Turkish-Armenian newspaper, was convicted under Article 301 for denigrating “Turkishness.” It was widely believed that because of the stigma attached to his criminal conviction, Dink became the target of extremists and in January 2007 he was shot dead.

The three major changes introduced to the text were: to replace “Turkishness” and “Republic” with “Turkish Nation” and “State of the Republic of Turkey,” to reduce the maximum length of imprisonment to be imposed on those found guilty under Article 301; and, most recently in 2008, to add a security clause, namely any investigation into the offence of denigrating “Turkishness” has to first be authorized by the Minister of Justice.

On 6 October 2006 Akçam published an editorial opinion in Agos criticizing the prosecution of Hrant Dink. Following that, three criminal complaints were filed against him by extremists under Article 301 alleging that he had denigrated “Turkishness.” Following the first complaint, he was summoned to the local public prosecutor’s office to submit a statement in his defense. The prosecutor in charge of the investigation subsequently decided not to prosecute on the ground that Akçam’s views were protected under Article 10 of the European Convention. The investigations into the other two complaints were also terminated with decisions not to prosecute. The Government submitted that it was unlikely that Akçam was at any risk of future prosecution on account of the recent safeguards introduced to Article 301, notably the fact that authorization was now needed from the Ministry of Justice to launch an investigation.

Accordingly, between May 2008 (when this amendment was introduced) and November 2009, the Ministry of Justice received 1,025 requests for authorization to bring criminal proceedings under Article 301 and granted such authorization in 80 cases (about 8% of the total requests). Furthermore, Akçam had not been prevented from carrying out his research; on the contrary, he had even been given access to the State Archives. His books on the subject are also widely available in Turkey.

According to Akçam, however, the percentage of prior authorizations granted by the Ministry of Justice was much higher, and these cases mainly concerned the prosecution of journalists in freedom of expression cases. He submitted statistics from the Media Monitoring Desk of the Independent Communications Network for the period from July to September 2008 according to which a total of 116 people, 77 of whom were journalists, were prosecuted in 73 freedom of expression cases. Akçam further claimed that the criminal complaints filed against him for his views had turned into a harassment campaign, with the media presenting him as a “traitor” and “German spy.” He has also received hate mail including insults and death threats. He further alleged that the tangible fear of prosecution had not only cast a shadow over his professional activities – he effectively stopped writing on the Armenian issue in June 2007 when he brought his application to this Court – but had caused him considerable stress and anxiety.

Complaints, procedure and composition of the Court Relying on Article 10 (freedom of expression), Akçam alleged that the Government could not guarantee that he would not face investigation and prosecution in the future for his views on the Armenian issue. He further alleged that, despite the amendment to Article 301 in May 2008 and the Government’s reassurances, legal proceedings against those affirming the Armenian “genocide” had continued unabated. Moreover, the Government’s policy on the Armenian issue had not in essence been changed and could not be predicted with any certainty in the future.

The application was lodged with the European Court of Human Rights on June 21, 2007. Judgment was given by a Chamber of seven, composed of Françoise Tulkens (Belgium), President; Danutė Jočienė (Lithuania), David Thór Björgvinsson (Iceland), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey), Guido Raimondi (Italy), Judges; and also Stanley Naismith, Section Registrar.

The decision of the Court The Court found that there had been an “interference” with Akçam’s right to freedom of expression. The criminal investigation launched against him and the Turkish criminal courts’ standpoint on the Armenian issue in their application of Article 301 of the Criminal Code (any criticism of the official line on the issue in effect being sanctioned), as well as the public campaign against him, confirmed that there was a considerable risk of prosecution faced by persons who expressed “unfavorable” opinions on the subject and indicated that the threat hanging over Akçal was real.

The measures adopted to provide safeguards against arbitrary or unjustified prosecutions under Article 301 had not been sufficient. The statistical data provided by the Government showed that there were still a significant number of investigations, and Akçam alleged that this number was even higher. Nor did the government explain the subject matter or the nature of the cases in which the Ministry of Justice granted authorization for such investigations. Moreover, the court agreed with Thomas Hammarberg, Human Rights Commissioner of the Council of Europe, in his report which stated that a system of prior authorization by the Ministry of Justice in each individual case was not a lasting solution which could replace the integration of the relevant Convention standards into the Turkish legal system and practice.

Furthermore, in the Court’s opinion, while the legislator’s aim of protecting and preserving values and State institutions from public denigration could be accepted to a certain extent, the wording of Article 301 of the Criminal Code, as interpreted by the judiciary, was too wide and vague and did not enable individuals to regulate their conduct or to foresee the consequences of their acts. Despite the replacement of the term “Turkishness” by “the Turkish Nation,” there was apparently no change in the interpretation of these concepts.

For example, in the case Dink v. Turkey of 2010 the Court criticized the Turkey’s Court of Cassation for understanding them in the same way as before. Thus Article 301 constituted a continuing threat to the exercise of the right to freedom of expression. As was clear from the number of investigations and prosecutions brought under this Article, any opinion or idea that was considered offensive, shocking or disturbing could easily be made the target of a criminal investigation by public prosecutors. Indeed, the safeguards put in place to prevent the abusive application of Article 301 by the judiciary did not provide a guarantee of non-prosecution because any change of political will or of government policy could affect the Ministry of Justice’s interpretation of the law and open the way for arbitrary prosecutions.

In view of that lack of forseeability, the Court concluded that the interference with Akçam’s freedom of expression had not been “prescribed by law,” in violation of Article 10.

NOTE: Under Articles 43 and 44 of the Convention, this chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

18 Responses

for “Human Rights Court Rules Turkey Cannot Criminalize Genocide Recognition”

  1. ElTurco says:

    So, is that mean that denial of genocide and holocaust cannot be criminalized due to the nature of Article 10 (freedom of expression) of the European Convention on Human Rights? I am perplexed once again by Western standards here !! Is this all about freedom of expression in Turkey or everywhere in Europe? I hope ECHR will not impose double standard when it comes to prosecuting those who question genocides by the French Republique (sic).

    The Europe sickens me with its two face..

    • Avery says:

      ElTurco, if Europe sickens you, why don’t you ask your 4-5 million Turk compatriots now living in Europe to join you in your long overdue journey back to your beautiful homeland around the Altai Mountains. There, on the open spaces of Mongolian Steppes, you can build an Islamic Paradise. You Turks are great people: hard working, creative, industrious, peaceful. You deserve to live in an Islamic Paradise, far away from those two-faced, treacherous Christians – you know, Europeans. Why live somewhere where your are not welcome ?

      You Turks don’t need Christians, do you ? After all Asia Minor aka Armenian Highlands, Eastern
      Byzantium was desolate wilderness when you Turks showed up. You Turks built and created everything. We will be sorry to see you go, but what can we do.

  2. ElTurco says:

    Punishing specific religions who wear particular types of dress in France, or banning of building belonging to certain religious groups in Switzerland……..Europe, you make me puke…with your self righteousness, your two face and your twisted understanding of humanism..Europe, you are an oxymoron to human reformation….Europe, you are going down with your ever increasing ignorance, racism, and bigotry..

    • Avery says:

      ElTurco: Nobody is forcing you Muslim Turks to stay in Christian Europe.
      Why should Europe change their religion, customs, traditions to suit you guys ?
      You do not like the restrictions, go and live in a predominantly Muslim country – how about Afghanistan ? Pakistan ? Indonesia ? all beautiful places. Nice people. You will feel right at home amongst your co-religionists.

      About 1,000 years ago Asia Minor was close to 100% Christian.
      Around 1915, 25% of Ottoman Turkey was Christian (Armenian, Greek, Assyrian, etc), 75% Muslim.
      Turkey today: Muslim 99.8% (mostly Sunni), other 0.2% (mostly Christians and Jews).
      What do you suppose happened to all those Christians ?

  3. Panos says:

    This is the type of legal precedent we need (along with the Arbitral Award of President Wilson) to eventually reclaim our lands in Western Armenia.

  4. [...] Corte de Direitos Humanos decide que Turquia não pode criminalizar reconhecimento do Genocídio Da Redação no comments Do Asbarez.com [...]

  5. David says:

    Congratulations Prof. Akcam, a great man and friend to the Armenian people.

  6. I like this man, Taner
    Phenotypically he looks Armenian or Kurdish
    I can’t see him Turkish…
    He has kind…caring eyes…
    He has message to humanity,
    To say, “Every one has right to live…
    and share his talent…honesty…with every other being…”

    This real Human Taner…
    To be against those scavengers…
    Has and is never easy…
    But he has gut to say…the truth
    and teach unteachable nation how to behave…
    Wish him the best to continue an win
    I hope he can change their cruel mentality…
    Which has been breathing there
    Since their birth
    Seeded in their DNA…

    Sylva

  7. vzgo says:

    Elturko Grow up and see the difference . if you can’t see the difference then be quiet about freedom of speech
    I bet you live somewhere in Europe collecting money from the government . if you do not like their law , do not reside in Europe , go to Iran or Afganistan and try this; practice yourself covering your face with a burka or a veil and walk in public. see how wanderful you will feel as a woman . People spitting on you degrading you for being a woman .God created men and women equally. In Iran or most of Afganistan , they beat women for disobeying their husbands for not covering their faces with the veil
    and you are talking of freedom ?????
    Just grow up. and smell the the roses. But not the shit around you.

  8. ElTurco says:

    “I hope he can change their cruel mentality…
    Which has been breathing there
    Since their birth
    Seeded in their DNA…”

    A poem that promotes racism..what an art…

    Claiming that anyone can have some sort of negative attribute within his/her DNA is very “Hitlerisque” thing to do..Sylva…I think before you take arms against Turks and writing poems of hate and racism, I suggest you learn fist that all human beings are created equally without preconceived notion of anything…Furthermore, it is genetically proved that overwhelming number of people in Turkey are natives of Anatolian peninsula who are anthropologically considered Armenoids. Over the centuries, most peoples of Anatolia became Turks. In fact, genetically pure Turks today live mainly in Central Asian Turkic republics, not in Turkey…What you call Turks of Turkey today, are mainly Armenians, Kurds, Circesians, Slavs, Greeks, Persians etc mix…

    If you really want to make a point against Turkish point on Armenians genocide issue, you need to quit using racist approach..You will loose..

    As a Turks, I do believe that many many Armenians were killed (500K or 1M is irrelevant, 1 is too many), perished during WW1, this should be acknowledged and Armenian should receive some sort of recognition by Turkey, despite the fact that Turkey is not responsible for what Ottomans did.

    Nevertheless, seeing that this issue is being reacted stubbornly and hatefully by many Armenians, I also believe that Armenian are not mature enough to sit down and talk about this issue civilized manner. Sylva is a prime example of this. People like her used ti gun down Turkish diplomats in 70s and 80s in terrorist acts, bombing airports in France..

    Unless Armenians learn to speak with manners and sense, there can be no further reconciliation on this issue..

    • Sarkis says:

      “Armenian should receive some sort of recognition”
      Many of my relatives were massacred in Adana. My grandparents had properties and lands and they were all lost. Do you agree to compensate me and many others? Will Turkey compensate for 3400 churches, schools, monasteries? Will Turkey respect the treaty of Sevres? Will Turkey acknowledge that the Ottomans planned the extermination of all Armenians? If Turkey is willing to do that, the Armenians will be willing to forgive. The Armenians have a big heart, but first we need to bury our dead, heal the wounds. It Turkey continues its policy denial, the wounds cannot be healed.

      • lilit says:

        Sarkis, I agree with you….. for example i had family members who were killed my grandpa even told me his grandpa’s life how he was killed during the massacre for saving his kids. His head was chopped if this comes any meaner…..yes Ottoman Turks have sliced his trout of an old man….yet today his home and everything he had is owned by this Turk. I also like to add maybe many Armenian’s will be willing for forgive, but I personally will never forgive them….

  9. Ilyas says:

    Is this the same Taner Akcam who joined a communist terrorist group called DEV-YOL in the 1970s who was involved in killing Turkish civilians, plots to attack American officials in Turkeys, plots to bomb Nato bases, kill US soldiers and troops and he then ran to Germany. Then now he is attacking his own motherland by the Turkophobic, racist genocide peddling trying to phase out the fact that his people also died in the hands of Armenian terrorists via an unarmed fashion. What a shameful traitor. Shame on his soul. Mr. Akcam will rot in eternal hell for treason.

    • lily Hurst says:

      He isn’t a traitor he simply talks the truth…..some of you turks have to realize that turks who recognize the genocide are truthful and honest people….people who really follow their holly islam.

  10. ArdeVast Atheian says:

    My Dear Turkish Friends who wrote above complaining about Christian Europe’s duplicity about Muslims, I have been born and raised in an Islamic country that imposes a special tax on us to build mosques in the middle of Christian communities, Mosques that are so loud that they wake you up at 2AM at night and five times all at ungodly hours to urge all of the Muslims who do not exist in our communities to pray. They force us to close our schools on Fridays and Saturdays, not Saturdays and Sundays the way we’ve been doing it was during the preceding two thousand years. They ban teaching of our history and mandate that everything taught in our schools be taught in Arabic. They force us change our scout attire to look like them and not like the Europeans way we used to look. I can go on endlessly on how oppressively Muslim countries treat us the Christians from whom they took our lands. My question to you my unduplicitous friends is how much of these would you have tolerated if those cruel Europeans had imposed them on you?

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