History and content of Article 301 of the Turkish Criminal Code

Article 301 was introduced in 2005 as a part of a package of criminal law reforms preceding the opening of negotiations on Turkey’s membership of the European Union. It is an amended version of Article 159 of the former Criminal Code from 1926.Footnote ²¹ It has been argued that, since its introduction into the Turkish Criminal Code almost a century ago, Article 159 has been used to suppress ethnoreligious minorities in Turkey.^{Footnote 22}

Article 301 currently reads as follows:

1. 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. 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. 3. The expression of an opinion for criticism does not constitute an offence.

4. 4. The conduct of an investigation into such an offence shall be subject to the permission of the Minister of Justice.^{Footnote 23}

The procedure for ministerial approval (paragraph 4) was introduced by an amendment of 2008, which also withdrew the paragraph that increased the sentence by one-third when a Turkish citizen breached the provision in another country. Therefore, committing the ‘denigration’ outside Turkey was initially considered an aggravating feature. Furthermore, the 2008 amendment reduced the possible sentence of imprisonment from three to two years, replacing the much-debated term ‘Turkishness’ with the expression ‘the Turkish Nation’.^{Footnote 24} The judicial practice and Article 301 itself have been heavily criticised as breaching standards of human rights, a stance which has not changed since the 2008 amendments.^{Footnote 25}

While Article 301 is not a memory law per se, it has been instrumental in pursuing and imposing contested state narratives regarding certain historical facts, including the Armenian genocide. Significantly, Article 301 has been regarded as a memory law not only by its critics but also by its proponents. In the Turkish legal discourse, the use of this provision to regulate expressions about the past has been justified by the existence of memory laws in Europe.^{Footnote 26}

Application of Article 301 of the Turkish Criminal Code

Article 301 has been identified as one of the most restrictive existing laws used to regulate historical memory. One of the most well-known instances of restricting freedom of expression with respect to the discussion of historical injustices is the prosecution of individuals who make reference to the Armenian genocide in Turkey. Notably, Article 301 does not overtly convey a stance on historical revisionism. The provision has been extensively applied, which is reflected in dozens of Yargıtay (second-instance) cases and eight judgments from the European Court of Human Rights. The vast majority of relevant Yargıtay cases concern insults against police officers and soldiers. However, that does not mean that Article 301 is not highly relevant for statement about the past. First, European Court of Human Rights judgments and literature reveal that criminal investigations under Article 301 concerning historical events have been initiated, but eventually terminated. Second, as the cases concerning historical events received massive media coverage, they have a major chilling effect.

Only two identified Yargıtay judgments apply to statements related to historical events.^{Footnote 27} One is a 2006 judgment regarding Hrant Dink.^{Footnote 28} The journalist and editor-in-chief of a Turkish-Armenian newspaper, Agos, was convicted for denigrating Turkishness because he published a series of articles on the identity of Turkish citizens of Armenian descent and the Armenian genocide. In particular, the Turkish court held that Article 301 had been breached by a statement on poisoned blood, which the judges construed as ‘Turkish blood’ (and therefore found it to be an instance of denigrating Turkishness). Hrant Dink simultaneously argued that what he described as ‘poison’ for the identity of the Armenians was their obsession with having the Turks recognise that the events of 1915 constituted genocide.^{Footnote 29} While this Yargıtay judgment upheld the first instance judgment convicting Hrant Dink under Article 301, the European Court of Human Rights ruled in 2010 that Turkey had failed to protect Hrant Dink’s freedom of expression and life (as the journalist was killed in 2007 by an ultra-nationalist).^{Footnote 30} Hrant Dink’s assassination received immense national and international attention and was one of the factors leading to the 2008 amendment of Article 301.^{Footnote 31} The second identified Yargıtay judgment applying Article 301 to a statement about the past was issued in 2013. It upheld a conviction of a person who sent emails insulting the memory of the first president of the Republic of Turkey.^{Footnote 32}

The analysis of domestic judgments gives a different impression of Article 301 than the eight judgments on Article 301 issued by the European Court of Human Rights.^{Footnote 33} Those eight rulings include the above-mentioned Hrant Dink case in 2010; one concerning the history professor, Altuğ Taner Akçam (2011); five about the publisher, Fatih Taş (2011, 2017, and three in 2018); and one regarding the journalist, Abdurrahman Dilipak (2015). Except for the Dilipak v Turkey judgment (which involved criticism of high-ranking officers), those cases can be categorised as statements about historical events. Both Hrant Dink v Turkey and Altuğ Taner Akçam v Turkey – arguably the best-known Article 301-related rulings of the European Court of Human Rights – apply to statements specifically about the Armenian genocide. As mentioned above, Hrant Dink was sentenced for writing a series of articles. Altuğ Taner Akçam, an academic working on Armenian history, complained that the existence of Article 301 interfered with his right to freedom of expression. He was charged in 2006 under Article 301 for an article in which he publicly criticised the prosecution of Hrant Dink and asked to be prosecuted on the same grounds for his opinions on the Armenian issue. While the domestic proceedings were eventually terminated, he was summoned to a prosecutor’s office to make a statement.^{Footnote 34} Altuğ Taner Akçam argued at the European Court of Human Rights that ‘the mere fact that an investigation could potentially be brought against him under this provision for his scholarly work on the Armenian issue caused him great stress, apprehension and fear of prosecution and thus constituted a continuous and direct violation of his rights under Article 10’ (freedom to expression).^{Footnote 35} The Court agreed with this assessment. The cases against publisher Fatih Taş applied to books published on the internal conflict between the State of Turkey and the Kurdistan Workers’ Party.^{Footnote 36} The conflict is ongoing, so categorising Article 301 in these cases as related to historical memory could be disputed. However, it is noteworthy that all of the books in question depicted events that had taken place at least a decade before their publication, with the majority of them constituting memoirs. Although the content of these works was undeniably pertinent to the contemporary context, they nevertheless constituted representations of historical events.

In the Altuğ Taner Akçam case the European Court of Human Rights found that not only could a conviction based on Article 301 violate the right of freedom of speech, but so could criminal investigations under the article, even though they were ultimately terminated. This is particularly relevant, as charges under Article 301 that did not result in sentences have been brought against many intellectuals. Aside from Altuğ Taner Akçam and Orhan Pamuk, this situation applied, for example, to the writer, Elif Şafak. Overall, it can be concluded that Article 301 has been used with regard to certain statements about the past,^{Footnote 37} and that those prosecutions received the most international attention and are more likely to reach the Strasbourg court.

2018 memory law package

The provision on the protection of the good name of the Polish state and nation was passed in January 2018 as part of a legislative initiative that included various amendments to existing laws. The package comprised modifications to multiple laws, including offences perpetrated in Poland and against Polish nationals, regulations regarding cemeteries and the protection of memorial sites. The explanatory memorandum of the Bill starts with the condemnation of the use of the term ‘Polish concentration camps’ with respect to German Nazi camps created and operated on the territory of occupied Poland during the Second World War. It further explains that these terms breach the good name of the Republic of Poland and the Polish nation. As Poland’s authorities have reacted to statements about ‘Polish concentration camps’ in the past through diplomatic channels, the explanatory memorandum continues that this has not proved sufficient and effective legal tools need to be established to protect the good name of the Republic of Poland and the Polish Nation. Next, the explanatory memorandum justifies the new provisions with the need to implement EU Framework Decision 2008/913.^{Footnote 38} According to the Framework Decisions EU member states shall make punishable, inter alia, ‘publicly condoning, denying or grossly trivialising’ crimes defined in the Charter of the International Military Tribunal (1945), ‘when the conduct is carried out in a manner likely to incite to violence or hatred against’ a group or a person ‘defined by reference to race, colour, religion, descent or national or ethnic origin’.^{Footnote 39} The reference the Framework Decision is misleading, as the package of 2018 memory-related laws does not serve it implementation: the laws do not criminalise statements that are incitements to violence or hatred. The Polish legislature (mis)used the Framework Decision and EU memory politics to justify its own, nationalistic, initiative. As the EU was aiming to protect minorities from hate, and the Polish laws aimed at protecting one official historical narrative, the interplay between EU and Polish memory politics produced the opposite effect to that which had been desired.

The 2018 amendments received global attention and criticism, mainly because of a provision that introduced criminal sanctions of up to three years’ imprisonment for ‘publicly and contrary to the facts claiming that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich, as specified in Article 6 of the Charter of the International Military Tribunal’.^{Footnote 40} The provision was interpreted as being intended to prohibit mentioning the involvement of Poles in crimes against Jews during the Second World War. This was not the first time such a provision had been adopted in Poland. In 2006, when the Law and Justice party (Polish: Prawo i Sprawiedliwość, PiS) was first voted into government, an amendment was introduced to the Penal Code which provided that ‘anyone who publicly accuses the Polish Nation of participating in, organising, or being responsible for communist or Nazi crimes may be imprisoned for up to 3 years’.^{Footnote 41} However, the provision was repealed by the Constitutional Tribunal for procedural rather than substantive reasons.^{Footnote 42} This paved the way for the subsequent adoption of this provision during the Law and Justice party’s next term of office. A great deal of international controversy resulted in the repeal in June 2018 of a part of the memory law package that criminalised attributing responsibility for Nazi crimes to the Polish nation or the Polish State.^{Footnote 43} However, it should be noted that the provisions that remain in force, including those protecting the good name of the Polish nation, have the potential to create a chilling effect.^{Footnote 44}

Protecting the good name of the Polish nation

The provision on the protection of the good name of the Polish nation and the Republic of Poland was added to the Act on the Institute of National Remembrance, a state institution with, among other things, investigative powers. There already existed a provision penalising insults to the Nation or Republic of Poland (Article 133 of the Polish Criminal Code); however, that is narrower than the new provision introduced in 2018.^{Footnote 45} A section was added to the law entitled ‘Protection of the good name of the Republic of Poland and the Polish Nation’. The new provisions, which are still in force today, read as follows:

It is worth noting that these provisions have not had nearly as much attention as the aforementioned criminal sanctions, which have since been revoked. There have been no concerted efforts to date to repeal these provisions and, while no judgments have been passed on their basis, at least one organisation has filed a case. In 2018, the ‘Polish League Against Defamation’ (Polish: Reduta Dobrego Imienia), an organisation with close links to the ruling government, filed a complaint against an Argentinian newspaper about an article on the Jedwabne pogrom of 1941, during which Poles murdered their Jewish neighbours.^{Footnote 47} The complaint concerned a picture accompanying the text that showed dead Polish partisans.^{Footnote 48}

Interestingly, the only judgment in which this provision has been mentioned so far was in the context of organisations bringing cases to protect the ‘historical truth’. The case applied to the defamation of a partisan group that was portrayed as being anti-Semitic in a TV programme. While deliberating on the principle that individuals are not entitled to pursue claims of the whole community or state, the court noted that this principle had been acknowledged by the legislature when introducing the new provision on the protection of the good name of the nation, which allows only specific non-governmental organisations to file claims, not individuals.^{Footnote 49}

This complaint and judgment illustrate three important features, the first being the central role that organisations, including non-governmental, play in implementing the law. The provision has specifically given the Institute of National Remembrance the ability to file cases about Poland’s good name.^{Footnote 50} The second feature is that – just as expected – it is particularly likely that the provision will be applied to crimes committed by Poles against Jews. Third, the amendment made it possible to file cases against statements made in other jurisdictions,^{Footnote 51} which was used in the lawsuit filed against the Argentinian newspaper. This also relates to Article 301 of the Turkish Criminal Code, which initially increased the sentence by one-third when a Turkish citizen breached the provision in another country. This parallel shows that both of those laws were introduced with the objective of particularly protecting the nation’s good name outside the country.^{Footnote 52}

Broad terms of the clause

As the European Court of Human Rights stated in 2011: ‘Article 301 of the [Turkish] Criminal Code does not meet the “quality of law” required by the Court’s settled case-law, since its unacceptably broad terms result in a lack of foreseeability as to its effects’.^{Footnote 53} While the Polish de facto memory law has not yet been analysed by that Court, it is highly likely that a similar statement on the broad terms and lack of foreseeability could be issued. The broad language used in these provisions is what makes them particularly effective for the state authorities, as it grants domestic courts and prosecutors an extensive amount of discretion when evaluating statements pertaining to the past. This latitude provides a substantial amount of leeway for judicial interpretation, which can be used to achieve the desired outcomes of the authorities. In Turkey, the substance of Article 301 remains consistent, whereby charges are brought against certain individuals, while others who have made similar statements remain unaffected. The practice of charges also varies periodically, depending on the current stance on history.^{Footnote 54} However, there is considerable flexibility in the application of Article 301. Although there is no existing case law on the Polish provision, the wording of the law similarly grants judges and prosecutors a great deal of discretion in its interpretation and application.

The broad and general phrasing of the clause inevitably leads to uncertainty for anyone who may be accused under it. In countries where the rule of law is weakening and the executive is attempting to exert control over the judiciary, such as Turkey and Poland, the broad phrasing of such provisions is particularly concerning, as it allows the executive to significantly influence their application. Therefore, the decision of when and against whom such provisions are to be applied becomes political. In this context also the broad phrasing of the clauses, coupled with a not fully independent judiciary, achieve a chilling effect. This situation has been found to induce self-censorship among translators, editors, and publishers.^{Footnote 55} The European Court of Human Rights has explicitly acknowledged the chilling effect with regard to charges brought under Article 301.^{Footnote 56}

The role of organisations in applying the law

A fascinating aspect when analysing the Polish and Turkish regulations and their application is the role of organisations. The involvement of such entities in the process has been explicitly included in Polish law, which allows non-governmental organisations, acting within the framework of their statutory objectives, to file civil cases for the protection of the good name of the Republic of Poland and the Polish nation.^{Footnote 57} Furthermore, court practice in Poland demonstrates the significance of organisations in similar cases, even in instances where the law does not explicitly provide for their involvement. For example, the libel case against Barbara Engelking and Jan Grabowski was brought by an individual but sponsored by the ‘Polish League against Defamation’. The two recognised historians were sued in 2019 because of a book they co-edited on the fate of Jews in a number of regions in occupied Poland. The book also covered Polish–Jewish relations during that time and crimes committed by Poles. The ‘Polish League against Defamation’, a group that has denied such crimes in the past, contacted the niece of one of the people mentioned in the book as being responsible for the murder of Jews during the Second World War. The 89-year-old woman then filed a defamation lawsuit against Engelking and Grabowski.^{Footnote 58}

Although Article 301 of the Turkish Criminal Code does not contain a comparable provision, it is clear from the implementation of the law that organisations have played a role in instigating cases. For example, the lawsuit against Hrant Dink was filed by a member of an ‘ultra-nationalist group’, which was protesting outside the publishing house on the day the criminal complaint was filed against Dink.^{Footnote 59} An important role is played by the Talât Pasha Committee, an organisation which a court in Istanbul found was created ‘for the purpose of “refuting the Armenian genocide allegations” and part of a “nationalist” and “chauvinist” organisation that stirred up hatred and enmity among peoples’.Footnote ⁶⁰ To achieve these objectives, the organisation has supported proceedings under Article 301 against people referring to the Armenian genocide and has organised campaigns, such as Doğu Perinçek’s campaign in Switzerland denying the Armenian genocide to test Swiss memory law.^{Footnote 61} Non-governmental organisations, such as the Talât Pasha Committee, are granted legal standing in Turkey under the Criminal Procedures Code, provided they can establish a sufficient connection to and harm resulting from the contested action.^{Footnote 62}

There is no need to assess whether the organisations involved in those forms of litigation can be considered ‘governmental-organised non-governmental organisations’, so-called ‘GONGOs’.^{Footnote 63} It is, however, important to point out that their actions support the historical policy of the respective states. The organisations promote a vision of the past, which has the objective of denying certain events, such as the Armenian genocide and crimes by Poles against Jews during the Second World War. States can rely on such organisations – which they might support in various ways, including financially – in applying de facto memory laws, such as the provisions protecting the name of the nation. Drawing on these organisations is a mean by which states circumvent direct accountability for prosecutions. Current research demonstrates that wuch organisations play a role in undermining liberal democratic values.^{Footnote 64} Therefore, their involvement in implementing de facto memory laws can be another example of their role in weakening the rule of law.

Applied in the context of active memory politics

Another similar feature of the de facto memory laws in question is the context in which they are applied. Both Poland and Turkey pursue particular active memory politics and promote a certain narrative of the country’s history, which does not acknowledge wrongdoings committed against minorities. As such, the truth about Armenian genocide or crimes against Jews by Poles during the Second World War is denied in various ways, including eliminating certain statements from the public discourse.

The unresolved historical issues in Turkey, such as the Armenian genocide or various crimes committed against Kurdish population,^{Footnote 65} and ongoing narratives are exerting an influence on the current situation and giving rise to both internal and external challenges.^{Footnote 66} The internationally best-known aspect of Turkey’s memory politics is its denial of the Armenian genocide,^{Footnote 67} which, while it has been a long continuous practice, has assumed various forms.^{Footnote 68} The Armenian genocide denial has been perpetuated since the initial years of the Turkish Republic through constraints on democratic freedoms and the oppression of minorities domestically.^{Footnote 69} The denial of historical wrongdoings has been coupled with the increasing suppression of freedom of expression.

Poland experienced a ‘memory boom’ after the fall of the Iron Curtain in 1989 and the beginning of democratisation.^{Footnote 70} Poland’s memory politics are very much centred on the nation’s historical victimhood, most notably in the Second World War. This became significantly more noticeable after the Law and Justice party returned to government in 2015. Several organisations, including the ‘Polish League against Defamation’, help the ruling party pursue memory politics, highlighting Polish victimhood and rejecting certain facts about the involvement of Poles in crimes in the past. The ‘politics of innocence’,^{Footnote 71} which entails a denial of crimes committed by Poles against Jews during the Second World War and emphasises the support that Poles provided to Jews during that time, is a central part of this narrative.