"insulting Turkish identity"

[Gavur]

New Dink trial postponed in Istanbul

Wednesday, May 17, 2006








ISTANBUL – TDN with AP


An Armenian-Turkish newspaper editor entered an Istanbul court on Tuesday to shouts of "traitor" and began the latest of his many legal battles.

Prosecutors have charged that Hrant Dink, a Turkish citizen, committed the crime of "attempting to influence the judiciary" when his bilingual Turkish-Armenian newspaper ran articles criticizing a law that makes it a crime to "insult Turkishness."

When a scuffle erupted between Dink's supporters and those chanting slogans against him, the judge decided to postpone the trial.

The law has been used to try writers and intellectuals, including Dink and the novelist Orhan Pamuk, for commenting on the mass killings of Armenians by Turks around the time of World War I.

Three other writers at the Agos newspaper, including Dink's son, also went on trial on Tuesday.

Turkey has been struggling to balance European Union demands for tolerance of free expression with a reluctance to discuss the mass killings of Armenians, which a number of governments and scholars have said were the first genocide of the 20th century.

The subject is rarely discussed openly in Turkey, and those who say Turks were guilty of genocide can end up in a Turkish court and be branded as traitors.

Internationally, Turkey has been struggling to fight recognition by other countries with a combination of political and economic threats.

Prosecutors have demanded that the court sentence Dink to a jail term of up to three years.

In addition to the trial for attempting to influence the judiciary, Dink has also been tried previously for "insulting Turkishness" and for saying the Turkish national anthem was discriminatory.


Dink,judge.lawyer gets pelted with racism in courtroom.
Reportedly 200 Turkish nationalists have tried to attack Hrant Dink
Gav-According to Turkish speaking media Dink was safe but the racists that forced themselves into the courtroom constantly interuppted the proceeding by ruckus and pelting the lawyers and the judge with pennies,lighters and pencils .The judge after one such attack warned that the court will take notes for that one of them shouted back a threat "Were taking notes too"

[Gavur]

Nationalist Protesters Attack Hrant Dink during Trial

ISTANBUL (BIA)--Ultra-nationalist spectators attacked defendants, their
lawyers, and observers during the court hearing of bilingual Armenian-Turkish
Agos newspaper editor Hrant Dink, the paper's editor-in-chief Sarkis Seropyan,
and columnist Aydin Engin at the Istanbul 2nd Court of First Instance.
Dink, Engin and their lawyers Fethiye Cetin and Ergin Cinmen said that
tensions in Tuesday's hearing, where the defendants are on trial for
"attempting to influence the judiciary," started when they turned up in front
of Istanbul's Sisli justice hall.
The group arrived at the court building to find its entrance blocked by angry
nationalists shouting "get the hell out of this country" and physically
threatening them.
"We had to enter the court building surrounded by a police cordon," Cetin
explained.
Dink added, "Thankfully the police officers did everything to get us into the
court building safely. They took us up to the court room in a special
elevator."
The defendants and their lawyers were then verbally harassed and had to dodge
physical assaults in the corridor before they entered the court room itself.
During the hearing, coins and pencils were thrown at them as a group of
observers believed to be led by nationalist lawyer Kemal Kerincsiz shouted
insults.
Nationalist "Jurists Union" lawyer Kemal Kerincsiz, Civilian Society
Organizations Union of Turkey (TSTKB) member Ramazan Kirkik, retired general
Veli Kucuk, and Independent Turkish Orthodox Patriarchy spokesman Sevgi
Erenerol were among those at the hearing demanding to be accepted as official
complainants against the defendants.
Agreeing with prosecutor Mustafa Dag's views, the court decided to reject
three separate appeals by the nationalists to be accepted as complainants on
grounds that they were "not directly affected by the alleged offense" while
judge Yalcin Hayret issued a warning to Kerincsiz and those around him for
repeatedly interfering in the case.
Kerincsiz claimed the judge himself had "lost his objectivity" and asked for
his removal on the grounds that he was preventing the intervention of
complainants. Kerincsiz's requests for Hayret's removal were rejected.
The verbal and physical assaults endured by the defendants and their lawyers
were so intense that they were noted in the court's records and according to
Cetin, the judge almost called the police into the courtroom.
When the hearing came to an end a group gathered downstairs and attacked the
defendants, lawyers, and observers. Two people were hit and the defendants
could only leave the building an hour later under police escort.
Following Tuesday's hearing the trial was adjourned to July 4.
Hrant Dink is on trial in this case for his article titled "Is democracy
going
to be established with this penal clause?" while Aydin Engin is charged for
his
article "One should touch the justice system." Both defendants are charged
under Turkish Penal Code article 288 for attempting to influence fair justice.
Dink's son, Arad Dink also went on trial Tuesday.
Dink, Engin, and Arad Dink refuted the charges brought against them and
maintained they had committed no offense.

Dink: I have been made a deliberate target

Aside from defending themselves to the court, Dink and his co-defendants were
forced to defend themselves to the intervening groups and nationalists that
turned up at the hearing.
"The marginal nationalists are clearly trying to make such cases popular and
are trying to produce a nationalist policy" Dink said after the hearing. "We
should not fall into this trap."
Dink added, "In all of the cases launched against me up till this day, I have
not asked any support from inside or abroad, from the press or politicians,
because this would mean falling into the trap of the marginal nationalists."
"I have been deliberately made a target. And they want to use this target
over
and over. By giving the impression that I have committed a crime that I have
not, the impression that I have insulted, they want to isolate me in front of
the Turkish society. At least those who know how to read and who understand
are
standing up against this."
Aydin Engin said, meanwhile, that justice itself was being lynched.
"A group led by Kerincsiz and his friends have attempted to lynch justice" he
said. "And in a big way they have succeeded."
He added, "I have seen many trials but throwing coins and pencils at us and
the defense lawyers by those who managed to enter the court room as
complainants is something I have seen for the first time."
Engin argued that the conditions of a "fair trial" no longer existed in the
case noting, "we ourselves are being put on trial for influencing a fair trial
but in reality today the conditions of a fair trial have been eliminated."
Defense Lawyer Cetin agreed, explained that the case of Dink and his
co-defenders was launched based on allegations of influencing justice.
"What has taken place today and what is being done in other trials is
influencing justice itself," she added.
"They are creating such an atmosphere that one cannot talk about a fair
trial.
They are putting pressure on the defendants, the defense, the judge, and
prosecutor. During the hearing they insulted the prosecutor," she said.
Cetin continued, "The pressure is directed at the court. When [the
nationalists] wanted to be accepted as complainants they said the Turkish
nation is a complainant and we are watching."
Defense Lawyer Cinmen said the incident at the end of the hearing "reflected
the intolerance toward freedom of expression in Turkey."
"The number [of protestors] is small but because they are extremely fanatic,
it is a mass that can show itself," he said.

[Gavur]

Turkish national faces sodomy charges

Web posted at: 5/29/2006 4:57:33
Source ::: The Peninsula
By Mohamed Ahmed Salem


Doha • A young Turkish national has accused a compatriot of sodomising him and offering him to others for money. The case was heard in the Upper Criminal Court yesterday.

Both the complainant and the accused work in a hair cutting salon in Bin Omran. They were earlier working in a salon in Umm Salal.

The 21-year-old complainant told the court that he arrived in Qatar 15 months ago and was coerced into sodomy by the accused, aged 41, barely three days after his arrival.

The man said he stayed on the mezzanine floor of the salon and the accused, who was the manager of the shop, came at 2 a.m. on that day. "He tore my clothes and put a pair of scissors on my neck and then he had forcible sex with me," he claimed.

Later, he took my passport and repeated the act by threatening me. He took money from some Qataris and a Sudanese and offered me to them, he said. "Someone I discussed the issue with, advised me to lodge a police complaint, which I did."

The lawyer for the accused in his cross-examination reminded the plaintiff that in his police complaint he had said that many Qataris and Saudis as well as Indians and Sudanese had sodomized him.

"Do you have any witnesses or do you know the names of the other accused," asked the lawyer. "I can only recognize them by face," the plaintiff replied.

The accused told the court that he hired the complainant as a barber from his home country, but when he arrived here it dawned that he did not know his job.

"We were stuck with him and thought of utilizing him as a masseur. However, as days passed by we came to learn that his behaviour was not up to the mark," said the accused. The court headed by Judge Salah Sharif gave June 15 as the date for issuing the verdict.

[Gavur]

No charges against Safak

TDN
Saturday, June 17, 2006

ISTANBUL - Turkish Daily News

The Beyoglu Prosecutor's Office in Istanbul decided to drop charges
against Elif Safak, who was accused of belittling Turkishness in her
new book, "Baba ve Pic," which will be published at the end of the year
in the United States as "The Bastard of Istanbul" by Viking/Penguin.

The prosecutor's office said they could find no evidence Safak intended
to belittle Turkishness in her book. Beyoglu Prosecutor Mustafa Erol in
his decision said: "In her testimony on June 6, 2006, she in summary
said her purpose in writing this book was not to belittle Turkishness
but just the opposite, to contribute to efforts to create a peaceful
and humane environment between Turks and Armenians. She said her book
was fictional."

The investigation was due to a character in her latest novel that
recognized the death of Armenians during the First World War as
genocide. The character's utterances were perceived as insulting
to Turkishness.

The trials against novelists and journalists for statements deemed
insulting to Turkishness, Turkey's founder Ataturk, the military or
the judiciary have increased in frequency as of late due to a campaign
by some groups to file complaints against them.

Most widely reported cases involved novelist Orhan Pamuk and the
editor in chief of Armenian daily Hrant Dink.

[Gavur]

'Insulting Turkishness' case reopens against bestselling author

Richard Lea
Friday July 7, 2006
Guardian Unlimited


A decision in Istanbul's seventh high criminal court this week has reopened the prosecution of bestselling Turkish novelist Elif Shafak on charges of "insulting Turkishness". She faces a maximum jail term of three years if convicted.
The charges were brought under Article 301 the Turkish criminal code, which was also used in the prosecution of Orhan Pamuk earlier this year. The charges were reportedly based on remarks made by a character of Armenian ancestry in her novel, The Bastard of Istanbul - the character describes the death of Armenians during the first world war as a genocide. The case was thrown out last month after Shafak argued that the book was a work of literature and that comments made by fictional characters could not be used to press charges against an author.




But following a complaint filed by Kemal Kerincsiz, a member of a group of rightwing lawyers known as the Unity of Jurists, the seventh high criminal court has overruled the decision not to proceed, reigniting a process that could end with jail sentences for Shafak, her publisher, Semi Sokmen, and her translator, Asli Bican.
"The situation in Turkey has changed since the introduction of Article 301 last year," Sara Whyatt, director of the Writers in Prison Committee at International PEN, told the Guardian today. "One has seen mainstream writers such as Orhan Pamuk, Perihan Magden and Elif Shafak being prosecuted.

"It seems to me that these prosecutions are being driven by a rightwing element within the Turkish judiciary, which is concerned about the Turkish application to join the EU," she added.

Whyatt did not expect Shafak's case to be resolved quickly. "So far nobody has been convicted under Article 301," she said, "but I think the trials are intended to harass and intimidate these writers and journalists. They often take many months and many hearings, often accompanied by violence inside and outside the courts. Elif Shafak is at the beginning of what could be a long and painful process."

She expressed dismay at recent events in Turkey - more than 60 writers and journalists have faced trial in the past year, many under Article 301: "International PEN is calling for this prosecution to be halted, and for the laws that allow for writers and journalists to be prosecuted, simply for their writing, to be removed once and for all."

Writer and translator Maureen Freely, who attended the trial of Orhan Pamuk earlier this year, described a campaign of choreographed intimidation against writers and their supporters. "These prosecutions are all being targeted by bands of disciplined fascists. Although the police who are there have now undertaken to protect the defendants, they first and foremost protect the fascist agitators and give them an opportunity to harass and intimidate all those who have gone to support fellow writers or observe the trial, both inside and outside the court house."

She compared the atmosphere in Istanbul to Germany in 1935. "People are getting a lot of intimidation," she said. "This is very sinister and you have to ask, in a country which is ably governed, why this is being allowed to happen."

Freely pointed to a resurgence in academia and the arts, and a willingness to examine a wide range of subjects that have been taboo: "There is a dynamic group of writers, academics, feminists and publishers, some of whom have mixed ethnic backgrounds, who are exercising their democratic rights to explore these issues."

These efforts were under-reported in the western media, which chose to focus on the forces reacting to it, she said. "It's a bit scary," she added, "but I'm impressed by what people are writing, singing and publishing, and I just want to ensure that they are able to continue to do so."

A date has not yet been set for Shafak's trial.

[Joseph]

Richard Lea
Friday July 7, 2006
Guardian Unlimited


A decision in Istanbul's seventh high criminal court this week has reopened the prosecution of bestselling Turkish novelist Elif Shafak on charges of "insulting Turkishness". She faces a maximum jail term of three years if convicted.
The charges were brought under Article 301 the Turkish criminal code, which was also used in the prosecution of Orhan Pamuk earlier this year. The charges were reportedly based on remarks made by a character of Armenian ancestry in her novel, The Bastard of Istanbul - the character describes the death of Armenians during the first world war as a genocide. The case was thrown out last month after Shafak argued that the book was a work of literature and that comments made by fictional characters could not be used to press charges against an author.




But following a complaint filed by Kemal Kerincsiz, a member of a group of rightwing lawyers known as the Unity of Jurists, the seventh high criminal court has overruled the decision not to proceed, reigniting a process that could end with jail sentences for Shafak, her publisher, Semi Sokmen, and her translator, Asli Bican.
"The situation in Turkey has changed since the introduction of Article 301 last year," Sara Whyatt, director of the Writers in Prison Committee at International PEN, told the Guardian today. "One has seen mainstream writers such as Orhan Pamuk, Perihan Magden and Elif Shafak being prosecuted.

"It seems to me that these prosecutions are being driven by a rightwing element within the Turkish judiciary, which is concerned about the Turkish application to join the EU," she added.

Whyatt did not expect Shafak's case to be resolved quickly. "So far nobody has been convicted under Article 301," she said, "but I think the trials are intended to harass and intimidate these writers and journalists. They often take many months and many hearings, often accompanied by violence inside and outside the courts. Elif Shafak is at the beginning of what could be a long and painful process."

She expressed dismay at recent events in Turkey - more than 60 writers and journalists have faced trial in the past year, many under Article 301: "International PEN is calling for this prosecution to be halted, and for the laws that allow for writers and journalists to be prosecuted, simply for their writing, to be removed once and for all."

Writer and translator Maureen Freely, who attended the trial of Orhan Pamuk earlier this year, described a campaign of choreographed intimidation against writers and their supporters. "These prosecutions are all being targeted by bands of disciplined fascists. Although the police who are there have now undertaken to protect the defendants, they first and foremost protect the fascist agitators and give them an opportunity to harass and intimidate all those who have gone to support fellow writers or observe the trial, both inside and outside the court house."

She compared the atmosphere in Istanbul to Germany in 1935. "People are getting a lot of intimidation," she said. "This is very sinister and you have to ask, in a country which is ably governed, why this is being allowed to happen."

Freely pointed to a resurgence in academia and the arts, and a willingness to examine a wide range of subjects that have been taboo: "There is a dynamic group of writers, academics, feminists and publishers, some of whom have mixed ethnic backgrounds, who are exercising their democratic rights to explore these issues."

These efforts were under-reported in the western media, which chose to focus on the forces reacting to it, she said. "It's a bit scary," she added, "but I'm impressed by what people are writing, singing and publishing, and I just want to ensure that they are able to continue to do so."

A date has not yet been set for Shafak's trial.

xxxkurt strikes again. I have a lot of respect for Elif Shafak and I hope she gets through this ok.

[Hovik]

Eurocommission Disappointed by Turkish Justice

Eurocommission Disappointed by Turkish Justice

PanARMENIAN.Net
13.07.2006 16:47 GMT+04:00

/PanARMENIAN.Net/ The European Commission is disappointed by
the verdict regarding Olli Rehn, the European Union's Enlargement
Commissioner, said. In his words the prison sentence imposed on writer
Hrant Dink is not just a restriction of freedom of expression but
may also set a binding case law for similar cases. Rehn described
Dink's prison sentence for insulting Turkishness, which was recently
finalized by a Court of Appeals ruling, as "disappointing." "That
judgment is the first final one by the highest jurisdiction in
Turkey about interpretation of Article 301 of the revised Turkish
Penal Code. In this sense, it establishes a binding case law that
will set the trend for lower jurisdictions to follow when applying
Article 301 in the future," he said.


He also highlighted his worry that Turkish courts are not interpreting
existing legislation in line with the relevant EU criteria. "I'd
therefore urge the Turkish authorities to amend Article 301 and other
vaguely formulated articles in order to guarantee freedom of expression
in Turkey. I'd also like to recall that freedom of expression is a key
principle under the Copenhagen political criteria and constitutes the
core of democracy. In any case, the European Commission will review
the situation in light of the Copenhagen criteria in its upcoming
progress report, expected in the autumn," Olli Rehn said, the New
Anatolian writes.

[Hovik]

EU warns Ankara over ruling

EU warns Ankara over ruling

Turkish Daily News
July 13, 2006

The European Commission lamented on Wednesday a Turkish court ruling
against an ethnic Armenian journalist for "denigrating the Turkish
national identity," warning that the case could cloud Ankara's
EU hopes.

Commenting on an appeal court ruling on Hrant Dink, EU Enlargement
Commissioner Olli Rehn called on the Turkish government to bolster
freedom of speech in the country.

"I am disappointed by this judgment which limits the exercise of
freedom of expression in Turkey," he said, following Tuesday's court
ruling, the first such judgment based on Article 301 of Turkey's new
Penal Code.

He noted that the ruling "will set the trend for lower jurisdiction
to follow when applying Article 301 in the future," adding: "This is
all the more serious since there are still a number of similar court
cases pending."

"I would therefore urge the Turkish authorities to amend Article 301
and other vaguely formulated articles in order to guarantee freedom
of expression in Turkey," he said.

He underlined that freedom of expression is a key principle of the
EU's so-called Copenhagen political criteria, which Ankara must adhere
to if it one day wants to join the currently 25-nation bloc.

"In any case, the commission will review the situation in light of
the Copenhagen political criteria in its upcoming Progress Report,"
Rehn said, referring to an annual report on Ankara's EU preparations
due in October.

Dink now faces the risk of going to prison if he commits a similar
offense over the next five years.

[Hovik]

Top court upholds Dinks sentence

Top court upholds Dinks sentence

Turkish Daily News
Jul 13, 2006

The Supreme Court of Appeals General Council on Wednesday agreed to
approve Agos daily Editor in Chief Hrant Dink's six-month suspended
sentence for "insulting Turkishness" despite the fact that the Supreme
Court of Appeals Prosecutor's Office argued that Dink was not guilty
of any crime.

The Sisli Second Criminal Court had found Dink guilty of insulting
Turkishness and sentenced him to a six-month suspended sentence. The
Supreme Court of Appeals Ninth Bureau had reversed the suspension,
arguing there was no doubt Dink was guilty of committing the crime.
The decision to suspend the sentence by the Sisli Second Criminal Court
was appealed by Dink, who is seeking acquittal rather than suspension,
and the complainants.

The Supreme Court of Appeals Prosecutor's Office had sought annulment
of the sentence, arguing that the material and emotional elements of
the crime "insulting Turkishness" had not taken place. The Ninth Bureau
said there was no doubt Dink's statement, "The clean blood that will
replace the poisoned blood of the Turk is present in the honored veins
that will be established between the Armenian and Armenia," insulted
Turkishness. "It is impossible to justify belittling a society while
praising another with the freedom of expression as defined by the
European Convention on Human Rights," the bureau said.

Dink had argued that what he meant by the statement was that Armenians
had the strength to overcome their destructive hatred of Turks. The
prosecutor's office can appeal the bureau's decision, and if it
doesn't, Dink will be retried by the Sisli Second Criminal Court in
accordance with the Supreme Court of Appeals' pronouncement.

The prosecutor's office noted its objection to the bureau's decision,
arguing that according to the Turkish Penal Code (TSK) all critical
opinions voiced without insult would not require a jail sentence. The
office also argued that Dink's article should be analyzed in its
entirety, not by analyzing words or sentences. The controversial
sentence Dink used could have two meanings, argued the office, adding,
"One can read the sentence alone and decide it is insulting, or read
the entire article and come to another conclusion." The office argued,
"While the words used may create controversy, disturb people and
create misunderstandings among those who failed to see the article
in its entirety, the author's intentions should be taken into account."

The office also said Dink's previous articles in the series should
also be read to understand his stance. Prosecutors said the poisoned
blood cited in the article did not belong to Turks but was the way
Armenians viewed Turks, which poisoned their identity. "That's why
one needs to understand the fact that the article does not insult
Turks but rather warns Armenians about their attitude, which poisons
their blood. The office also noted that according to the Constitution,
"Turks" meant all citizens of Turkey, without discrimination between
religion or ethnicity, and that as a result the article could only
be viewed as a criticism of Turkish citizens of Armenian origin

[Hovik]

From Orhan Pamuk to Oriana Fallaci

From Orhan Pamuk to Oriana Fallaci

Brussels Journal, Belgium
July 12 2006

>From the desk of James McConalogue on Tue, 2006-07-11 23:56

In Turkey, Orhan Pamuk has recently taken to defending a controversial
female columnist - Perihan Magden - after the Turkish Armed Forces
pursued a case against the author for objecting and denigrating
military service. Since the defendant, Magden, is a female supporting
Mehmet Tarhan, a homosexual citizen, it has become a case not simply
considering the place of women and homosexuals in Turkish culture, but
more importantly, a case highlighting the right that all individuals
have to express themselves, given the intrusive status of religion in
public life. The cases of these authors demonstrate the very reason(s)
why it continues to be necessary to defend the freedom of expression
on religious matters in Europe's transitional democracies.

In Late December 2005, Pamuk found himself embroiled in a case
of defending his right to free expression. His homeland of Turkey
brought charges against him for "insulting Turkishness" after he had
claimed in a Swiss newspaper, Tages Anzeiger, that 30,000 Kurds and
one million Ottoman Armenians were killed in Turkey yet nobody would
dare to talk about it. He attended a court in Istanbul for his trial.
The case was dropped on 22 January 2006 after the Ministry of Justice
held that it was not legally viable for the country to intervene. For
a country desperate for EU entry, and confident on proving basic
liberal credentials, it was a sensible move. More recently, Elif
Shafak - author of The Bastard of Istanbul - also faces charges of
"insulting Turkishness" under the notorious Article 301 of the Turkish
Criminal Code.

However, Pamuk's case clearly demonstrates the religious boundaries
that have to be challenged in order to attain free expression in
transitional democratic countries. The trial of Pamuk was (rightfully)
thrown out in January this year. The trial of his Italian counterpart,
Oriana Fallaci, was due to begin on 12th June this year but has been
delayed. Italy has encountered similar problems. While Italy, like
Turkey, is attempting to run a nation by its demos, it still remains -
in law, electoral politics and political culture - a variant democracy
in transition.

A modern Italian journalist whose writing on Islam has tended to cause
insult is Oriana Fallaci. Perhaps unlike other writers, such as Salman
Rushdie in Britain and Michel Houellebecq in France, Fallaci's case
is slightly tainted. It is tainted because the case does not appear
to offer critique through fiction - rather the essays themselves
are political essays directly opposing Islam in fairly biting and
vehement criticisms.

The Oriana Fallaci controversy

It seems important to retrace the steps of how, in particular,
Fallaci's case developed; it is a valuable contemporary lesson on
how Europe's transitional democratic states ought not to have acted
following a literary controversy. On 11th September 2001, just under
three thousand people were horrifically killed, following the intended
crashing of four aircraft into the central and densely populated
urban areas within New York City, Virginia and Pennsylvania. It was
alleged by the American government and accepted by Islamic leader,
Osama bin Laden - and remains accepted within most ranks of society -
that a collective of Islamic organizations which operate under the
name al-Qaeda were the perpetrators of the atrocity.

Radically different analyses of the situation - most hot-headed
and intolerant reports by either Western-centric reporters or
Islamic commentators - have been offered across the world, based
within a variety of political spectra. The immediate conflict has
been posed as one of the West versus the Islamic faith, the Western
value of toleration versus Islamic intolerance, or liberalism versus
multiculturalism. One popular and vehement critic was the journalist,
Oriana Fallaci. Her opinion essay, La Rabbia e l'Orgoglio (The Rage
and the Pride) had been published in Italy, just eighteen days after
the attacks of September 11 occurred. Two years later, in 2003,
a brief follow-up book entitled The Force of Reason, formulated a
similar critique of Islam operating in Europe.

What it seems important to question is this: what is Islam's opposition
to Fallaci's essays and books on Muslims? More to the point, how did
the author ever manage to offend Islam? These questions are important
since they enable us to then address the impossible sanctions that
Muslims appear to be imposing upon individuals who seek to express
themselves on issues relating to Islam.

Fallaci's book, The Rage and the Pride, heavily criticizes many
aspects of Islam and is vulgar, to say the least, in the manner
in which it achieves its degrading criticism. Unlike Houellebecq's
and Rushdie's novels, the text is a critique of Muslims in America
and Europe. Her intolerance at the presence of Muslims in Italy,
following the terrorist attacks in America, is immediately apparent.
She writes: "I'm telling you that we have no room for muezzins,
for minarets, for false teetotalers, for their xxxxing Middle Ages,
for their xxxxing chador."

The grounds and basis of its critique can be found in its hot-headed
reactionary journalism, populist armchair philosophy, obsessive
patriotism, ill-considered "atheism" with a large residual respect
for Christian values, and a religious separatist outlook towards
individuals in Muslim and non-Muslim cultures. Fallaci confesses her
extreme Italian and American patriotism - the two countries in which
she has lived. Of course, she finds that eternally divided Italy has
no such modern patriotic blessing and the country has surrendered
itself to what she refers to as Islam and its "sons of Allah". The
mere "presence" of Muslims in the world is too much for Fallaci, and
as for the presence of Muslims in Italy, it "was not an immigration,
it was more of an invasion conducted under an emblem of secrecy." The
"war of religion", we are warned, "is in progress." Consequently, "if
we don't oppose them, if we don't defend ourselves, if we don't fight,
the Jihad will win." (Interestingly, many well-respected academics,
particularly in the United States, had already begun to pit Islam
against the West in their accounts of global political conflicts,
such as Sam Huntington's The Clash of Civilizations, 1993).

For Fallaci, those who did not see the subsequent war in Iraq
approaching are those who allowed Muslims, "the sons of Allah get
away with a little too much." The essay quite clearly labels Muslims,
"birdbrains", "scoundrels", "terrorists", inherently lazy people,
welfarists and "idiots". As with the Theo van Gogh controversy in
Holland, the criticisms were not of a wildly intellectual nature. The
author often confesses her ignorance at the understanding of the
Islamic faith, in addition to claiming the West to have the hold on
rationalism, and Islam (and its associated states) to have the claim
on arbitrary womanizing and countless murdering and wars.

The Italian courts are still embroiled in the Fallaci controversy
and the case is far from resolved. The courts have recently decided
to pursue the trial of Fallaci, by trying her case on the Italian
defamation laws. It is claimed that Fallaci defamed Islam. If this
case were to win, it would challenge a largely common response of
Western liberal states: to not intervene in cases of free expression,
especially when those cases relate to religion. A state can be brought
to its knees through intervention in the sphere of free speech.

Why free expression?

A basic tenet of a modern European society is that each individual is
free to enjoy certain basic and personal freedoms, including that of
expressing oneself freely. In its history, that sense of expressing
oneself freely is often felt to be most sincerely represented when
it comes to defending free expression with respect to religion.

In the doctrine of John Stuart Mill's On Liberty, published in 1859,
the right to freedom of expression and its conditions are stated
clearly. The most fundamental principle of a freely operating liberal
society is the right to the "freedom of opinion". This "independence
is, of right, absolute." The only exception in which Mill conceived
such freedom to be limited was if it were to impose severe harm onto
others - he declared this to be a rare thing. The intervention in
a literary controversy is no longer an option for a modern European
government.

In the Fallaci controversy, the right to freedom of expression
currently prevails. Despite the fact that Fallaci had written a
derogatory essay claiming that Italian Muslims are "birdbrains"
and "idiots", it still remains important to proceed to defend the
freedom of expression - publishing it freely and imposing no ban. The
statements expressed here, by themselves, are decontextualised from
the remainder of the text. Therefore, pithy extracts offer us little
insight into the argument - just as the pamphleteering of Rushdie's
extracts by Muslims on the streets of Pakistan meant very little,
since they are not merely name-calling texts.

Within the confines of the law, Fallaci's essay itself does not
harm others. The harm or offence caused by the text could only,
at the very most, be understood as a breach of racial and religious
hatred or the blasphemy laws. In modern society, the breach of those
principles should rarely qualify for harm or strong offence-related
arguments in cases of free expression. It is certain that we live in
a multicultural society and that the notion of multicultural society,
and Muslims within that society, are constantly changing. However,
it is just as certain that we live within a liberal society - in
which its basic architecture requires that we do not remove or alter
certain fundamental freedoms, including that of free expression.

The harm done to others, in cases where it is felt the text will
incite mass religious hatred - with the preconditions of tyrannical
governments and a homogenous citizenry - should only be executed
on rare occasions, since it does little justice to the cultural
diversity and critical discussion said to underpin free expression
itself. That is to argue that a ban, based on harms incurred, assumes
the individual to be unreflective, lacking in spontaneity and often,
incapable of reason. If that is to be every Muslim's subject of
defence, then it might be asked if it is a subject worth defending.
In fact, the texts themselves rarely represent harm, or offence, and
the calls for bans based on offence are often premature reactions
of the unnervingly dogmatic representatives of Islam, clearly set
against the West in politics, economy and individual values.

It is certain that free expression on matters pertaining to Islam
will prevail. It is through recourse to dated Catholic-centric
Italian laws that Muslims have sought to legitimize their claims to
offensiveness. This legally enables the right to intervene in the
publications of Fallaci's anti-Islamic writings. However, since the
harm done to others did not signify a physical injury, or anything of
that magnitude, to any individual or group, there were few grounds for
rightful interference. The most coherent legal route to preventing
the offence was through the prosecution of Fallaci, with reference
to the defamation laws.

In Italy, a unique history, embroiled in changes under the Italian
constitution during Mussolini's regime, meant that Catholicism occupied
a primary place in considerations of the state. It is certain that
the Italian constitution, in its first three articles sets out to
protect all citizens and accord them the freedom to speech until it
sacrifices "public morality". The third article of The Constitution
of the Italian Republic of 1947 states that "All citizens have equal
social dignity and are equal before the law, without distinction
of sex, race, language, religion, political opinions, personal
and social conditions." Yet, only in the past twenty years, have
significant changes in Italian society brought about toleration of
free expression towards religion. The Constitution also states that
"Religious confessions other than Catholic have the right to organize
in accordance with their own statutes, in so far as they are not in
conflict with Italian laws." Therefore, there are cases in which
the law does impinge upon the freedom to organise and express oneself
on religious matters, when it contravenes Italian law; a law already
heavily skewed by the solidarity of Catholicism.

As elsewhere in Europe, in Italy it is clearly illegal to incite
discrimination on religious grounds. However, rather than argue for
offence through incitement to religious hatred laws - which Fallaci's
Muslim prosecution still remain eager to pursue - the most successful
and quickest way of suppressing free expression in Italy is through
claims to defamation. This is the current claim that has been made in
the Muslim prosecution against Fallaci. It is claimed that her writings
"defame" Islam. Italy's own government often use the defamation
laws to bring critics of ministers, and antagonists of the state,
to justice, and it has been claimed that it is rare (and possibly the
first case in Italy) for free expression to be challenged by Muslims
through recourse to the defamation laws. At the time of writing,
the case for Fallaci has not finished. One would, however, hope for
Italy that what has happened in the rest of Europe for many centuries,
will continue to happen and that free expression on matters pertaining
to Islam will prevail. That is to say, Fallaci should be acquitted.

The only imaginable case in which this would no longer hold would be
as follows. Since Fallaci offers perhaps the strongest and prejudiced
"hate" article against Muslims - against a national (Italian) and
global community - there is a possibility that it could be proven to
incite religious hatred. The case for incitement to religious hatred
would have to prove that there was a threat to physical existence, or
harm done to others, of such significance that this piece of literature
should no longer be available in society, and the author sentenced
accordingly. Her trial has yet to begin this month in Bergamo.

Europe could well do with laying down a red carpet for authors such as
Fallaci rather than trying them - after all, it is freely speaking and
writing individuals that make European society such a vibrant platform
for the free exchange of ideas. If you remove the artistic and literary
freedom to express, through the bizarre invention of corrupt laws,
then there is very little left in the essence of modern society -
constitutional or cultural - that is still worth defending.

http://www.brusselsjournal.com/node/1174