New 301 hammer cocked and ready

The article is the part of the Turkish penal code that criminalizes insulting Turkishness. It was watered down after intense pressure from the European Union last year and now requires approval before a case can be pursued.

Ankara’s prosecutor Nadi Türkaslan, assigned to monitoring the media, is examining whether there is a need to start an investigation against the people who signed the "I Apologize to Armenians" petition after six citizens filed a joint criminal complaint. Petitioners apologize, for their part, to Armenians for the "Great Catastrophe that Ottoman Armenians were subject to in 1915." The act of apologizing is an insult to Turkishness, according to the complainants.

Professor of Criminal Law at Istanbul University, Ersan Şen, said the question to be asked when deciding whether there is a violation of Article 301 is whether or not the petition aims to insult the idea of the Turkish nation or not.

"A prosecutor may well seek out permission to investigate from the justice minister," Şen told the Hürriyet Daily News & Economic Review yesterday. In its renewed form, an Article 301 case requires permission from the Justice Minister, currently Mehmet Ali Şahin, for prosecutors to begin an investigation.

"A go-ahead is needed or the prosecutor cannot even start collecting evidence," Şen said. "The minister’s decision on the request will be final if he rejects it." A prosecutor may decide not to request a trial even if permission is given.

"As much as I disagree with the ’I apologize’ statement, I must say that it is very difficult to describe its content as opposing Article 301," said an associate professor of law, Ümit Kocasakal, from Galatasaray University. "The European Court of Human Rights ruled that even shocking and disturbing ideas may be expressed within the framework of freedom of expression," Kocasakal said.

"Nevertheless, if the prosecutor rules that implicating a country in genocide or a massacre is an insult, he may go for it," Kocasakal said. "Although there is no mention of the term ’genocide,’ in the campaign statement, it is clear that a state, or the Turkish nation, is being accused. The prosecutor may argue that, for a nation, having committed a massacre is deriding."

Şen said: "It is pointless to bring obstacles before prosecutors who have the best knowledge of the law. Note that the Turkish nation in the article is not described in terms of race, but in terms of citizenship. There are similar articles in penal codes in some European countries like France and Germany, too."

'Campaign may hinder bilateral rapprochement'
The apology campaign started last December when Professor Ahmet İnsel, Professor Baskın Oran, Dr. Cengiz Aktar and Ali Bayramoğlu published a short apology text on a Web page and allowed people to add their signatures. "My conscience does not accept the insensitivity shown and the denial of the Great Catastrophe that the Ottoman Armenians were subjected to in 1915. I reject this injustice and for my share, I empathize with the feelings and pain of my Armenian brothers and sisters. I apologize to them," reads the full text of the declaration, signed by a few thousand people.

The campaign has met with reactions from state officials, including Prime Minister Recep Tayyip Erdoğan. Erdoğan said he did not commit any crime against anybody and that the campaign was pointless.