Press releases

15 May 2008, Implementation of the Amended Article 301 of the Penal Code. (Unofficial Translation)

Upon the entry into force of the amendment of Article 301 of the Turkish Penal Code (Law no: 5237), a Circular (NO. 18/1) was issued by the Ministry of Justice on 9 May 2008. the Circular lays down principles as to how to conduct a criminal investigation based on the said article governing “insulting the President, the Turkish Nation and the high authorities of the sate “

In the amended article, the permission of the Minister of Justice serves as a precondition to launch a criminal investigation. Thus conduct of any investigation under Article 301 is no longer possible unless the Minister of Justice gives permission.

Ministry of Justice, in its abovementioned circular, underlines the following principles as to the implementation of Article 301;

All the pending cases based on Article 301 shall be returned to the Ministry of Justice to seek the permission of the Minister of Justice. If the Minister does not give permission, the case shall be dropped on the ground of lack of permission.

Even if a criminal investigation is launched upon the permission of the Minister of Justice, the prosecutor still has discretionary power to decide not to prosecute. Therefore, the new system proves a twofold guarantee as regards the freedom of expression

According to the Turkish legal system, international conventions on human rights automatically become part of the national legal order without additional transposition once they are adopted by the Parliament. Hence, international human rights instruments to which Turkey is party have to be taken into consideration by judges and prosecutors in dealing with cases in accordance with Article 90 of the Constitution.

Therefore, prosecutors are strongly encouraged to directly apply the landmark decisions of the European Court of Human Rights (ECtHR) and particularly the Handyside v. UK case. The circular refers to the Handyside v. UK case which interprets Article 10 (art. 10-2) of the European convention of Human Rights (ECHR) on freedom of expression. The ECtHR, in this case, states that freedom of expression is applicable not only to ideas that are favourably received or regarded as inoffensive or as a matter of indifference by society, but also to those that offend, shock or disturb the State or any sector of the population. ECtHR, in its decision, points out that the expression of these ideas is necessary to ensure pluralism, tolerance and broadmindedness without which there is no “democratic society”. This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty” imposed in this sphere must be proportionate to the legitimate aim pursued.

Furthermore, statement of the suspect cannot be taken before the permission of the Minister of Justice in order no to discredit the suspect in the eyes of the public.

The permission procedure of Article 301 will be carried out by the Directorate General of the Penal Affairs of the Ministry of Justice where competent judges are assigned. Besides, the expert judges of this DG are quite experience on such cases because at the time of the previous Penal code the Minister was the responsible body to give permission for the similar freedom of expression cases under the Article 159.

Republic of Turkey - Ministry of Foreign Affairs