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238 A.E. Bozbayındır File riservato ad esclusivo ne di studio led to convictions based on this broad interpretation of the norm. e changes made with the latest amendment can be better understood by comparing the new Article 301 with the former version, came into force in 2005 22 , which established that: 1. A person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey shall be punished by imprisonment for a term of six months to three years. 2. A person who publicly denigrates the Government of the Republic of Turkey, the judicial bodies of the State or the military or security organizations of the State shall be punished by imprisonment for a term of six months to two years. 3. In cases where denigration of Turkishness is committed by a Turkish citizen in a foreign country the punishment shall be increased by one third. 4. Expressions of thought for the purpose of criticism shall not constitute a crime. e rst change, which even a supercial reading reveals, is the replacement of the term «Turkishness» (Türklük) with the term «Turkish Nation» (Türk Milleti). Although the former term is interpreted as synonymous with the latter in the legal doctrine 23 , the term Turkishness as it is dened in the ocial Commentary to the TPC was problematic in regard of the lex certa principle, for it was a vague concept 24 that bears a resemblance to the term «Italianità», which is an ethno-cultural concept 25 . e term Turkish Nation is thought to be clearer since it is based on the criterion of citizenship to the Turkish State which is comparable with the Italian «Nazione» or the German «Staatsvolk», which are less metaphysical and obscure concepts than Volk, Italianità or Türklük. 26 e other conceptual change that is of minor importance is the crystallization of the term «Republic» (Cumhuriyet) as “the State of Republic of «Turkey» (Türkiye Cumhuriyeti Devleti). e amendment also Sözüer ve Liane Wörner, Baden-Baden 2010, p. 376. 22 Art. 301 of the Code No. 5237, the Turkish Ocial Gazette No. 25611, 12 October May 2004. 23 T.Y. Sancar, Alenen Tahkir ve Tezyif Suçları, cit., p. 83; A. SÖzÜer, Soykırım değil, çünkü…, in Hukuki Perspektier Dergisi, No. 9, 2006, p. 7. 24 See for a comprehensive analysis of the term T.Y. Sancar, Alenen Tahkir ve Tezyif Suçları, cit., p. 70.; M.E. Artuk, A. GÖkcen, A.C. YenidÜnya, TCK Şerhi Özel Hükümler, m. 235-345, Vol. 5, Ankara 2009, p. 5646. 25 Cf. E. Dolcini, G. Marinucci, Codice Penale Commentato, Artt. 1-384bis, II Edizione, Milano 2006, Art. 291 margin number 3. Likewise, the ocial comment to 2005 version of Article 301 and the Court of Cassation`s interpretations of the notion reect such an understanding of the notion. According to the Ocial Comment the term Turkishness means «a common entity which is formed by the culture of Turks irrespective of where they live in the world. is entity has a broader meaning than the concept of “Turkish Nation” and it encompasses societies who share the same culture and live outside Turkey». For a critical review of such denition see B. Algan, e Brand New Version, cit., p.2241 ; O. Can, Der Schutz der staatlichen Ehre und religiösen Gefühle in der Türkei, in O. Depenheuer, I. Dogan, O. Can (Hrsg.), Der Schutz staatlichen Ehre und religiösen Gefühle und die Unabhängigkeit der Justiz, Berlin 2008, p. 40 . 26 Cf. Codice Penale Art. 291; cf. M.E. Artuk, A. GÖkcen and A.C. YenidÜnya, Ceza Hukuku Özel Hükümler, 10. Baskı, Ankara 2010, p. 1083.
File riservato ad esclusivo ne di studio Denigration of the Turkish Nation has an eect on the length of imprisonment, as the perpetrator shall now be liable for imprisonment not more than two years long, whereas in the former version the duration of imprisonment was of three years, as in the Codice Penale Rocco Article 290 27 . e aggravating circumstance, inspired by Article 293 of the Codice Penale Rocco, was abolished by the amendment, as it was abolished by the Italian legislator in 2006. 28 Practically the most important change brought about by the amendment is that any investigation on the oence shall be subject to authorization from the Minister of Justice, though the Minister does not grant the authorization in most cases, which has led to a considerable reduction of case law. Be that as it may, the adjective «cosmetic» is widely used when evaluating the 2008 amendments 29 , and seemingly, the European Court of Human Rights (henceforth called the Strasbourg Court) shares the same opinion, as in a recent decision it held that the existence of Article 301 in and of itself violates the right of freedom of expression 30 . e reasoning of the Court is based mainly on three arguments: rst, the notions employed in Article 301 violate the lex certa principle 31 ; secondly, the Turkish Courts interpret these notions widely 32 ; thirdly, the condition of authorization (autorizzazione) of the Minister of Justice does not provide a sucient safeguard, for the attitudes of the Ministers would change according to the political climate in Turkey 33 . Indeed, the last argument was discussed also before the amendment, when some jurists recommended that the President should be the competent authority to issue the permission, for he is not a political gure in the Turkish system. However, this solution carries the risk of compromising the impartiality of the President 34 . e second argument is 27 It should be noted, however, that today the punishment for this oence provided for by Codice Penale is no more imprisonment but a ne. 28 Article repealed by Art. 12, co. 1, L. 24 february 2006, n. 85; see also, S. Selçuk, Adalet ve Yasayan Hukuk, Ankara 2009, p. 523. 29 See C. Çandar, 301’de kozmetik değişikliğe gerek yok… , in Hürriyet Gazetesi, 8 February 2007; B. Algan, e Brand New Version, cit., p.2251; H. Sinar, Yeni Türk Ceza, cit., p. 377. 30 e Strasbourg Court, Altug Taner Akcam v. Turkey, Judgment of 25 October 2011, Second Section. e applicant, Mr. Akcam, a sociologist known for his views on 1915 events concerning Ottoman Armenians, which are dierent from the ocial Turkish position, claimed that the mere existence of Article 301 of the TPC violates his freedom of speech. Although there was an investigation against the applicant based on a complaint lodged by an individual, the prosecutor decided not to prosecute him, since his views fell, according to the prosecutor, within the scope of freedom of thought. Notwithstanding the fact that Article 301 had never been applied against the applicant, the applicant and e Strasbourg Court are of the view that the risk of being investigated because under Article 301 constitutes a violation of Article 10 of the European Convention for the Protection of Human Rights and Individual Freedoms. Presumably, the decision of the Strasbourg Court shall heat up the debate on Article 301 again. 31 Akcam v. Turkey, cit., para. 87. 32 Akcam v. Turkey, cit., para. 93. 33 Akcam v. Turkey, cit. para. 78, 94. 34 See, for instance, the Selçuk draft on Article 301 of the TPC, S. Selçuk, Adalet, cit., p. 508, 521- 239
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