US embassy cable - 05ANKARA7242

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 007242 
 
SIPDIS 
 
SIPDIS 
 
DEPARTMENT FOR EUR/SE 
 
E.O. 12958: DECL: 12/12/2015 
TAGS: PGOV, PREL, PHUM, OSCE, TU 
SUBJECT: TURKEY UNDER FIRE FOR HIGH-PROFILE SPEECH CASES 
 
Classified by Ambassador Ross Wilson; reasons 1.4 b and d. 
 
1. (C) Summary: Turkish prosecutors have recently opened a 
number of speech-related cases against high-profile writers 
and intellectuals, drawing sharp criticism from EU 
Enlargement Commissioner Rehn and others.  The number of such 
cases has actually dropped in recent years.  However, 
political activists unknown in the West were often jailed in 
the past for controversial speech, whereas today well-known 
figures like novelist Orhan Pamuk, emboldened by recent legal 
reforms, are testing the new boundaries of free speech.  A 
GOT official averred to us that prosecutions for non-violent 
speech will cease once courts adjust to the reforms. 
However, the fundamental problem lies in the un-reformed 
mentality of GOT officials, starting with PM Erdogan, who 
have yet to fully accept freedom of speech in its broadest 
form as a core value.  End Summary. 
 
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Pamuk, Others Charged for Statements 
------------------------------------ 
 
2. (C) In the wake of the historic October 3 opening of 
Turkey's EU accession talks, a series of high-profile court 
cases has raised doubts about the country's commitment to 
freedom of expression.  Intellectuals in the West continue to 
rally in support of Turkish novelist Orhan Pamuk, who faces 
criminal charges for saying that one million Armenians and 
30,000 Kurds have been killed in Turkey; his trial is set to 
begin December 16.  Since October 3, Turkish prosecutors have 
pursued trumped-up charges against a number of other 
well-known journalists and intellectuals.  Hrant Dink, editor 
of the Istanbul-based Armenian community newspaper Agos, has 
been convicted of "insulting Turkish identity."  Prosecutors 
have charged publisher Fatih Tas with insulting "Turkish 
identity" and Ataturk by publishing a Turkish edition of a 
book on the arms trade by an American scholar.  Professors 
Baskin Oran and Ibrahim Kaboglu are preparing to defend 
themselves against charges of "humiliating the judiciary" and 
"inciting hatred" in a report they prepared on minorities in 
Turkey.  The Supreme Court recently upheld the 2002 
conviction of journalist Burak Bekdil on criminal charges for 
a column he wrote about corruption in the judiciary. 
 
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Rehn Calls Cases "Particularly Serious" 
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3. (U) This trend has not escaped the EU's attention.  During 
a November 23 speech before the EU-Turkey Joint Parliamentary 
Committee, Enlargement Commissioner Rehn listed freedom of 
speech as the top priority the GOT needs to address to 
advance its candidacy.  Rehn warned that the recent, 
high-profile cases are "of particularly serious concern" and 
called on the GOT to "ensure that the judiciary system 
functions in line with European standards."  Rehn accused 
members of the Turkish judiciary of acting "as if they had 
not noticed that Turkey is a member of the Council of Europe 
and negotiating for membership in the EU, where pluralism and 
free speech are basic values which cannot be compromised." 
 
4. (U) Turkey has made progress on freedom of expression in 
recent years.  The capture of PKK leader Abdullah Ocalan in 
1999 helped reduce, somewhat, the state's sensitivity to use 
of the Kurdish language and the open expression of the 
Kurdish cultural identity.  The EU reform process has further 
extended the boundaries of expression on a range of sensitive 
topics.  Prosecutors are opening fewer court cases based on 
controversial, but non-violent, expression, and courts are 
acquitting a higher proportion of defendants in such cases. 
 
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Intellectuals Emboldened By Reforms 
----------------------------------- 
 
5. (C) So what explains the recent series of high-profile 
prosecutions?  Oya Aydin, attorney for professors Oran and 
Kaboglu, told us the new boundaries on expression are broader 
than before, but less clear.  In the past, she said, student 
activists and union organizers unknown in the West were 
 
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routinely prosecuted and jailed for speaking out, and the 
outside world paid little attention.  Today, well-known 
figures like her clients, and Pamuk, feel emboldened by the 
reform process.  They are testing the new boundaries, and 
regularly finding themselves on the wrong side.  Five years 
ago, Baskin Oran and Orhan Pamuk would not have dared to say 
what they said, Aydin averred. 
 
6. (U) Prosecutors charged Oran, Ankara University 
international relations professor, and Kaboglu, Marmara 
University law professor, for their roles as principal 
authors of a 2004 report on minorities in Turkey.  The 
report, adopted by the GOT's Human Rights Consultation Board, 
stated that Turkey continues to apply a narrow, legalistic 
definition of "minority" based on a misinterpretation of the 
1923 Lausanne Treaty.  The report further noted that 
non-Muslim Turkish citizens are effectively barred from 
careers in state institutions, and called on the GOT to adopt 
a broader concept of minority consistent with contemporary 
Western societies. 
 
7. (U) The professors are charged under two articles of the 
Turkish Penal Code: Article 301, which outlaws speech that 
"humiliates" the government, the state and its institutions, 
"Turkish identity," or Ataturk; and Article 216, which 
prohibits speech that incites "hatred or enmity" in a manner 
that threatens public order.  The indictment is typical of 
Turkey's free speech cases.  Prosecutors often seek to punish 
those who criticize state institutions, on the grounds that 
such criticism constitutes a security threat. 
 
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Vague Laws Fail to Protect Speech 
--------------------------------- 
 
8. (U) Like many of our contacts, Burak Bekdil told us the 
problem with Turkey's speech-related laws is that the 
concepts are not defined.  What does it mean, for example, to 
"humiliate" the state?  And at what point does critical 
speech threaten public order?  This lack of definitional 
clarity -- gained in the U.S., for example, through decades 
of case law -- offers prosecutors broad latitude to press 
charges. 
 
9. (C) Bekdil was convicted in 2002 of "insulting the 
judiciary" in a column he wrote asserting that the Turkish 
judicial system is corrupt and that "an ordinary Turk would 
probably have one in a million chance for a fair trial if he 
is foolish enough to trust Turkish courts and judges."  The 
Supreme Court in November upheld the verdict.  Bekdil noted 
to us that the judge who initiated the case against him is 
currently on trial for corruption, essentially proving 
Bekdil's thesis. 
 
10. (C) The court handed Bekdil a 20-month suspended prison 
sentence, meaning that he could be imprisoned if he is 
convicted for the same crime within the next five years. 
This will have a chilling effect on his writing.  "I would be 
crazy to criticize the judiciary again," he said.  Official 
Turkey has not yet accepted the idea that speech-related 
prosecutions constitute harassment that inhibits free 
expression regardless of the final verdict.  Constitutional 
Court President Tugcu, for example, recently dismissed the 
importance of the Pamuk case by assuring us that Pamuk would 
not be imprisoned, echoing comments we hear often from GOT 
officials. 
 
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MOJ Official: Courts Need Time to Adjust 
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11. (C) Aykut Kilic, foreign relations director at the 
Ministry of Justice, averred to us that Turkey's 
speech-related problems will be solved with time.  The Penal 
Code has recently been amended, and judges are adjusting to 
the new language.  If lower courts make mistakes, he said, 
the appeals court will overrule them and establish the kind 
of jurisprudence that will prevent such prosecutions in the 
future.  Kilic maintained that the most egregious cases are 
pursued by older prosecutors who are not willing to adapt to 
 
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the reforms. 
 
12. (C) Aydin, however, rejects that argument.  She noted 
that the prosecutor who opened the case against Oran and 
Kaboglu was appointed by the ruling AK Party (AKP) and is 
known to be close to the AKP leadership.  Moreover, FM Gul 
and other high-level GOT officials angrily and publicly 
denounced her clients when they released their report on 
minorities. 
 
13. (C) Like other contacts, Aydin pointed to the mentality 
of Turkish officials as the real obstacle to free expression, 
rather than the wording of the Penal Code.  Aydin referred to 
the numerous speech-related lawsuits PM Erdogan has brought 
against cartoonists who have lampooned him, as well as 
against writers and demonstrators whose speech he considered 
personally insulting, as evidence that the GOT leadership has 
not embraced the Western concept of free expression.  Yusuf 
Alatas, president of the Human Rights Association, said the 
PM's thin skin is a symptom of a society where the "sacred 
state" and its leaders are viewed as a father who always 
knows what is best.  Our leaders still think like sultans, 
Alatas said. 
 
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Comment: Standing Voltaire on His Head 
-------------------------------------- 
 
14. (C) Voltaire defined the Western concept of free speech 
when he said he would "defend to the death" the right of 
another to disagree with him.  We can deal with individual 
cases, even high-profile ones, and perhaps the judiciary will 
gradually get its house in order.  The core problem, though, 
remains Turkey's leaders, who, despite recent reforms, are 
prepared to defend only the rights of those who agree with 
them. 
 
15. (C) PM Erdogan was once jailed for reciting an Islamic 
poem.  The experience has led him to support those 
like-minded Turks who, for example, want to criticize the 
official ban on headscarves in universities.  But he has 
shown no tolerance for those who criticize him or his 
government, or who speak out on sensitive topics unrelated to 
Islam.  While there is broad freedom of expression in Turkey, 
it will require additional work to convince Turks that this 
mst include the right to criticize and clear guarantees to 
protect that right. 
WILSON