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Turkey legalizes the Denial of the Armenian Genocide - 4th Part -

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  • Turkey legalizes the Denial of the Armenian Genocide - 4th Part -

    Newropeans Magazine
    June 8 2005

    Turkey legalizes the Denial of the Armenian Genocide - 4th Part -

    Written by Houry Mayissian
    Thursday, 09 June 2005

    90 years have passed since Ottoman Turkey committed genocide against
    its Christian Armenian subjects in 1915. Although several parliaments
    have recognized the Armenian Genocide and many historians have
    established that it is a historical fact, the Turkish government
    still refuses to acknowledge it. It has, in the past 90 years,
    implemented several methods to deny the genocide ever happened. The
    latest of these measures was the recent criminalization of the
    acknowledgement of the Armenian Genocide in the new Turkish Penal
    Code, which took effect on June 1.

    Vagueness in the article


    The problem with article 305 of the new Turkish Penal Code is not
    only the limitations it imposes on freedom of expression; the law is
    flawed in itself, because it is vague. In its November 13th 2004
    issue, The Economist writes: `... an article of the new penal code
    approved in September...provides for up to ten years' jail for those
    who engage in unspecified `activities' against the `national
    interest.' What might such activities be?'(1) The article mentions
    the examples included in the explanatory report and questions their
    validity.


    The fourth paragraph of article 305 specifies that the term
    fundamental national interests means `independence, territorial
    integrity, national security and the fundamental qualities defined in
    the Constitution of the Republic.'(2)


    The explanatory report mentions that the function of this last
    paragraph is to serve as a `limiting criterion', because `the concept
    of `fundamental national interests' may be very wide both from the
    point of view of its content and its scope.' The definition given for
    `fundamental national interests' is unclear. Furthermore, even though
    several limiting criteria are mentioned in the law, the explanatory
    report in no way illustrates how affirmation of the Armenian Genocide
    would jeopardize any of the above-mentioned criteria. Moreover, the
    law talks about benefits and promises, but does not mention or
    clearly define what such benefits might be.


    A Violation of freedom of expression



    In addition to being flawed, article 305 of the new Turkish penal
    code constitutes a serious violation of freedom of expression, an
    essential pillar for a democratic society. By legalizing denial of
    the Armenian Genocide the Turkish Government not only distorts
    historical realities, it also prohibits discussion and affirmation of
    the fact of the Armenian Genocide.

    The document this article depends upon to make its argument is the
    European Convention for the Protection of Human Rights for several
    reasons: Turkey adopted the new penal code as a condition by the
    European Union to start accession talks; Turkey has ratified this
    document in 1954(3); the European Commission and the Parliament have
    regarded the article in violation of the said convention.

    Article 10 of the European Convention for the Protection of Human
    Rights states: `Everyone has the right to freedom of expression. This
    right shall include freedom to hold opinions and to receive and
    impart information and ideas without interference by public authority
    and regardless of frontiers.'(3) Thus, by banning affirmation of the
    Armenian Genocide, the Turkish Government infringes on the freedom to
    receive and impart information and ideas, which violates the above
    article ratified by the Turkish government itself. Moreover, the
    article casts doubt on how seriously the Turkish government respects
    the conventions of the European Union, a body it has been trying to
    join for long.
    Having said the above, it should be acknowledged that in no country
    in the world absolute freedom of expression can be ensured.
    Furthermore, the concept of freedom of expression in itself is broad
    and subject to many interpretations. For this purpose, in addition to
    the above Convention, I also base my critique of article 305 on the
    theory of Clear and Present Danger.



    (1) Haunted by the past. The Economist (2004, November 13). 34-37
    (2) Haraszti, M. Review of the Draft Turkish Penal Code: Freedom of
    Media Concerns. Retrieved 19-05-2005.
    (3) Human Rights Watch. (1999). Violations of free expression in
    Turkey
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