Main opposition Republican People's Party (CHP) lawmaker and leading human rights defender Mahmut Tanal said the judges who decided to arrest and jail Today's Zaman Editor-in-Chief Bülent Keneş have violated articles of the Constitution and the European Convention on Human Rights (ECHR).
“The judges who decided on the case of Keneş and examined the challenges to his detention cannot overlook the case law of the European Court of Human Rights (ECtHR) and the convention,” he said.
“Otherwise, these judges will be liable for compensation when the court awards financial damages to Keneş for rights violations,” he added.
The İstanbul 7th Penal Court of Peace ordered the arrest of Keneş on Saturday after he was taken into custody on Friday evening on charges of insulting President Recep Tayyip Erdoğan via his tweets, in what is seen as another blow to freedom of the press in Turkey.
Keneş is currently incarcerated in Metris Prison pending trial.
Keneş was detained in front of the daily's headquarters in İstanbul and was unlawfully taken to the anti-terror unit of the police department when in fact he was not facing any terror charges.
Tanal explained that Article 299 of the Turkish Penal Code (TCK), which Keneş is alleged to have violated, is nothing more than a tool to silence freedom of speech and expression in Turkey.
He underlined that Article 299 is clearly in contradiction with Article 10 of the ECHR, which protects freedom of expression.
Article 299 states: “Anyone who insults the president of the republic shall be imprisoned for a term of one to four years. When the offense is committed in public, the sentence shall be increased by one-sixth.”
Tanal said the penal code protects the president more than the average citizen when it comes to freedom of expression.
He recalled that in the case of Ekrem Pakdemirli versus Turkey, the ECtHR decided that the applicant's right to freedom of expression (Article 10 of the Convention) had been violated.
The case was originated by Pakdemirli in 1997 when he was sentenced to pay civil damages of a substantial amount by the Turkish court because of comments he made about then-President Süleyman Demirel.
The Strasbourg court emphasized that “freedom of expression constitutes one of the essential foundations of a democratic society.”
The court noted that the politician inevitably and knowingly was exposed to close scrutiny of his every word and deed by both journalists and the public at large and, a fortiori, by a political opponent. He must show greater tolerance, especially when he indulges himself in making public statements that are susceptible to criticism.
Finally, the ECtHR said the applicant's right to freedom of expression had been violated and ordered the Turkish government to pay the applicant 35,000 euros for damages plus 3,000 euros for court expenses.
Tanal said there are other cases in which the ECtHR upheld freedom of expression when it comes to criticizing public officials, including heads of the state.
CHP Deputy Chairman Sezgin Tanrıkulu filed a parliamentary motion with the Office of the Parliament Speaker on Friday for the annulment of Article 299.
After submitting the motion, Tanrıkulu told reporters that it is important to annul the article to increase citizens' rights and especially freedom of expression in Turkey, which is a candidate country for full membership of the European Union. Underlining that just as for any other citizen, criticism of political leaders must not be considered libel. Tanrıkulu said the CHP proposes to expand the possibilities for criticism of politicians, which would be constructive while they serve in politics.
On Oct. 6, a number of prominent intellectuals including journalists, academics and politicians launched a signature campaign arguing that the notorious Article 301 of the TCK, which was amended by Parliament in 2008, has been resurrected in the form of Article 299 and demanding its removal.
According to Article 301, “insulting the Turkish state,” its officials or “Turkishness” was illegal and the article was often used as a tool for punishing well-known journalists, authors and scholars. The article was often strongly criticized by rights groups, activists and the European Union for limiting free speech. Many Turkish journalists and authors, such as Elif Şafak and Nobel laureate Orhan Pamuk, have faced prosecution based on the controversial provision, mostly for comments supporting claims that Turkey committed genocide against the Armenian people in 1915. The disputed provision was changed in Parliament in May 2008.
Those behind the signature campaign say that like Article 301, Article 299 is also used to intimidate people who are critical of the government, but the nature of the intimidation has changed, with the aim of the law being to protect Erdoğan's “one-man rule” rather than “Turkishness.”
Comparing President Erdoğan's term in office with that of his predecessor, Abdullah Gül, the signatories said that no one was arrested under Article 299 during Gül's seven-year term despite 545 insult cases being filed, while 14 individuals have been arrested and 282 people have faced investigations over the one-year period during which Erdoğan has served as president.