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Turkey: Penal Code Amended, But Loopholes Remain

Prague, 7 February 2002 (RFE/RL) -- In a surprise vote last night, the Turkish parliament amended controversial legal provisions governing freedom of thought and expression.

Although the changes are aimed in principle at bringing national legislation closer to international human rights standards, it is still unclear whether they will meet criteria set by the European Union to start accession talks with Ankara.

Turkey applied for EU membership in 1987 but was granted official candidate status only two years ago -- a delay due mostly to European concerns about human rights. Ankara now stands last among 13 candidate countries and hopes that a date for the start of accession talks will be set by the end of 2002.

Yesterday's vote ended weeks of bitter dispute between Prime Minister Bulent Ecevit's two coalition partners -- Deputy Prime Minister Mesut Yilmaz's center-right Motherland Party (ANAP) and Deputy Prime Minister Devlet Bahceli's far-right Nationalist Action Party (MHP).

Before the vote, Bahceli had said he opposed any easing of restrictions on freedom of expression included in the penal code, arguing that it would undermine national security and encourage separatist trends among Turkey's 12-million-strong Kurdish minority.

Yilmaz, who oversees relations with the EU in the government, had by contrast called for radical changes to achieve Turkey's goal of joining the 15-nation bloc.

At the core of the dispute between the two ministers were controversial provisions in the Turkish penal code -- Articles 312 and 159 -- and antiterror legislation passed in the early 1980s to quell the Kurdish insurgency in Turkey's southeast.

Article 312 states that inciting crowds to hatred on religious, racial, social, or cultural grounds is punishable by up to three years in jail. Legislators yesterday reportedly added a clause saying that the offense, to be punishable by law, should now be committed "in a way that could endanger public order" or "put people in a dangerous situation."

In its previous version, Article 159 said anyone defaming the military, the police, the government, or any other state institution that symbolizes "Turkishness" could face up to six years in prison. The amended version reduces the maximum jail term to three years.

Legislators also reduced jail terms included in Article Eight of the antiterrorism law to one to three years from a previous two to five years.

The final wording was apparently the result of a last-minute compromise brokered by Ecevit to speed up the vote, which had not been expected for weeks. Ecevit's Democratic Left Party (DSP), which holds the majority of seats in parliament, reportedly added its own proposals to the draft package, which human rights groups had earlier denounced as further restricting the scope of individual liberties.

Although the final amendments are less restrictive than the initial draft, the head of the Istanbul Bar Association, Yucel Salman, yesterday criticized the new legislation, saying that both articles 312 and 159 should have been abrogated.

The head of Ankara University's penal law department, Nevzat Toroslu, told AFP that he does "not expect the amendments to have any major impact in practice."

Critics also argue that, whatever the wording, judges and prosecutors have the liberty to interpret the legislation in their own way.

Three years ago, the then-mayor of Istanbul, Recep Tayyip Erdogan, was jailed under Article 312 on the grounds that he had incited religious hatred by reciting at a rally a poem comparing minarets to "bayonets" and mosques to "barracks." Yet the poem had been approved by the Education Ministry for use in schools.

In 1999, the then-chairman of the Turkish Human Rights Association, Akin Birdal, was sentenced to one year in prison under Article 312 for inciting racial hatred, although his only crime had been to advocate a peaceful solution to the Kurdish issue.

In comments broadcast last night on Turkey's private NTV channel, Riza Turman, a high-ranking Turkish magistrate who sits on the European Court of Human Rights, defended the legal changes as broadening freedom of expression.

But Turman also acknowledged that interpretation of the law will remain in the hands of individual judges.