Article 301 And Its European Cousins Options

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Article 301 and its European cousins

There is a growing debate in Turkey and Europe about Article 301, and the signs emanating from the government suggest that some kind of an amendment, if not an annulment, is on the way in this regard due to outside and domestic pressure, even if it is not clear when this will actually take place.

There is a growing debate in Turkey and Europe about Article 301, and the signs emanating from the government suggest that some kind of an amendment, if not an annulment, is on the way in this regard due to outside and domestic pressure, even if it is not clear when this will actually take place.

Much of the debate mentioned, however, rests on “hearsay” and “suppositions” rather than “facts.” The best example is when defenders of 301 in Turkey say that “Europe too has similar articles” but are unable to actually name these in any concrete way to prove their point.

In the same way, I have come across European friends who are not aware that similar -- if not identical -- articles exist in Europe and are trying to “pin” Article 301 on Turkey as a specific “Turkish anomaly.”

Not wanting to fall into either trap -- having already fallen into the “Europe does not have such laws” trap once already -- I decided to do some research on the matter.

This led me to Caslon Analytics, a consultancy firm that has been cited by a whole range of highly reputable institutions, including the Berkman Center at Harvard Law School, the European Commission, the U.S. Congress, Ecole Nationale Supérieure des Sciences de l'Information, etc.

The information below comes from a study done by this firm and is helpful in giving us an idea of what the legal situation in Europe is concerning issues such as vilifying the nation, the flag, the sovereign, public servants, etc.

I give this information to help those European friends who appear (incredibly in some cases) not to know the law in their own countries but are quick off the mark to comment about Article 301 as being “totally unprecendented in current-day Europe.”

I also think that this information could be useful for Turkish lawmakers and officials who are genuinely interested in bringing Turkish law in line with European law, rather than talking off the cuff and citing “tit-for-tat” examples that they cannot actually name.

Of course, the question of “implementation” will still remain, even after a “legal alignment with Europe” is achieved on this score, since it is clear that a prosecutor in Turkey can, for example, take Article 248 of the Austrian Penal Code and interpret it in the same way as Article 301 in its present-day form, against people like Orhan Pamuk or Elif Safak.

Put another way, the problem here has more to do with a country's level of social development, especially in terms of its judiciary, rather than a specific statute or the way it is phrased. In other words, you can have the best laws on paper, but without proper implementation this will mean nothing on its own.

So the real challenge for Turkey vis-à-vis Europe is not just to amend Article 301 (and I would prefer it to be abolished all together) but to ensure that the standard of its judicial practices is on par with European practices.

This will require a more refined awareness whereby politics and the law are not confused with one another. This, in turn, will take time to happen in Turkey and is one reason why Europe must be patient and keep Turkey's “EU perspective” alive, if indeed its aim is to genuinely see this country in its fold one day -- whether this takes place 10 or 20 years down the line.

However, to come back to the information obtained from Caslon Analytics as to the situation in some key European countries, it is as follows:

Section 248 of the Austrian Penal Code, inherited from the Third Reich, is concerned with "denigration of the state and its symbols" and provides that:

“Whosoever, in such a manner that the act becomes known to the general public, in a malicious way, insults and brings into contempt the Austrian Republic and its States, is liable for imprisonment for up to one year.

"Whosoever, in the manner described in Paragraph 1, in a malicious manner and at a public occasion or a function open to the public, insults, brings into contempt or belittles the flag displayed for official purposes or the national or state anthems of the Austrian Republic or its States, is liable for imprisonment of up to 6 months or a fine of up to 360 times the fixed daily rate.”

The law in France as part of “internal security” enactments passed in 2003 makes it an offense to insult the national flag or anthem, with a penalty of a maximum 9,000 euro fine or up to six months' imprisonment.

Restrictions on "offending the dignity of the republic," on the other hand, include "insulting" anyone who serves the public (potentially magistrates, police, firefighters, teachers and even bus conductors). The legislation reflects the debate that raged after incidents such as the booing of the “La Marseillaise” at a France vs. Algeria football match in 2002.

The German Criminal Code Section 90 concerns “Disparagement of the State and its Symbol.” It provides that:

“Whoever publicly, in a meeting or through the dissemination of writings (Section 11 subsection (3)):

"1. insults or maliciously maligns the Federal Republic of Germany or one of its Lands or its constitutional order; or2. disparages the colors, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its Lands, shall be punished with imprisonment for not more than three years or a fine.”

Identification of "Crimes Against the State" in Italy features "public insult or vilification of the flag or any other emblem of the State." Article 292 of the Criminal Code deals with anyone who "publicly insults or vilifies" the national flag or "other emblem" of the state, punishable by imprisonment for up to four years. It encompasses those who publicly insult or vilify the national colors as distinct from the flag.

In Portugal Article 332 of the Penal Code, dating from 1999, provides that

“Anyone who by words, gesture, in writing or by any other means of public communication, desecrates the Republic, national flag or the national anthem the symbols or emblems of the Portuguese sovereignty, or in any other way fails to pay them their due respect, shall be punished with a prison sentence of up to 2 years or with a pecuniary penalty of up to 240 days.”

Source : Semih İdiz, TurkishDailyNews

Regards,