The prosecution of – among others – a cartoonist, a contributor to a website, and the publisher of a diary have raised concerns about how the complementary human rights of freedom of expression and freedom of religion or belief can be exercised in Turkey, including the religious freedom right not to believe. The common element is that all these cases relate to the prosecution of questioning or criticism of all religions, or Islam specifically, from an atheist perspective. Also, in all these cases Article 216 (3) of the Turkish Criminal Code (“Denigrating the religious values of a group”) has been used as the legal basis of prosecution. A close look at this provision and its application is therefore necessary to understand the developing intersection of freedom of expression and freedom of thought, conscience, religion or belief in Turkey.
These cases are taking place in the context of public debate on drafting a new Constitution. This has opened up discussion in Turkey of a wide range of issues to do with freedom of religion or belief (see F18News 30 November 2011http://www.forum18.org/Archive.php?article_id=1641).
The fundamental human right to freedom of religion or belief “protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief”, as General Comment 22 on Article 18 (“Freedom of thought, conscience and religion”) of the International Covenant on Civil and Political Rights (ICCPR) puts it. Article 19 (“Freedoms of opinion and expression”) of the ICCPR complements freedom of religion or belief with the statement: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his [sic] choice”. As General Comment 34 on this Article puts it: “All forms of opinion are protected, including opinions of a (..) moral or religious nature”.
Under the ICCPR, permitted freedom of expression restrictions “shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals”. Article 20 of the ICCPR requires that states must by law prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. However, General Comment 34 notes that it is incompatible with Article 19 “to criminalize the holding of an opinion”.
The Turkish Criminal Code’s Article 216 (3) states: “Any person who openly denigrates the religious beliefs of a group shall be punished with imprisonment from six months to one year if the act is conducive to a breach of the public peace”. The interpretation and application of this Article should be brought into line in every case with Turkey’s international obligations.
Court cases based on “denigrating religious values”
Cartoonist Bahadir Baruter is facing a maximum possible imprisonment of one year, following the publication of a cartoon he drew in Penguen magazine on 10 February 2011. The cartoon showed the slogan “There is no God, religion is a lie” written on the wall of a mosque. The Presidency of Religious Affairs Foundation’s Officers’ Union and a number of citizens complained about Baruter. The Istanbul Public Prosecutor’s Office then brought a prosecution against him under Criminal Code Article 216 (3), and demanded the maximum sentence. The second hearing is scheduled to take place on 29 March 2012. Baruter’s prosecution has been both strongly defended and attacked in some parts of the Turkish media.
A website user called A.M.S. contributed to the Eksi Sözlük (Sour Dictionary) collaborative website a comment entitled “Absurdity of Religion” on 10 August 2010. He too was prosecuted under Article 216 (3), this time by Istanbul’s Prosecutor for Media Cases, Nurten Altinok. Prosecutor Altinok argued that A.M.S. went beyond legally permissible freedom of thought and criticism, and denigrated the Islamic religion and the belief that God created the universe. For this violation of Article 216 (3), Altinok asks that A.M.S. be jailed for between six months and one year. Article 218 states that if this crime is committed through the media the sentence will be increased by a half.