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A Test Case for the European Union? - The Trial of Orhan Pamuk - by Doctor Harry Hagopian

The trial of Orhan Pamuk had barely started in Istanbul, Turkey, on 16 December 2005, when the presiding judge adjourned the proceedings until 7 February 2006.

Few are the media-savvy and news-conscious Europeans across much of the Union who will not have heard of Orhan Pamuk. An internationally renowned author of bestselling novels such as My Name is Red (winner of the IMPAC Literary Award in 2003), Snow and more recently Istanbul , the 53-year-old Pamuk was also a short-list candidate for the Nobel Prize in Literature. On 31 August 2005, he was charged with "denigrating the Turkish national identity" under Article 301 of the Turkish Penal Code due to a pithy remark he made in an interview to the Swiss magazine Tages Anzeiger on 6 February 2005 in which he stated that 'one million Armenians and 30,000 Kurds were killed in these lands [Ottoman Turkey] and nobody but me dares talk about it.'

In postponing the trial, the court ruled that the alleged offence was committed before Turkey amended its penal code. Therefore, the court argued, Pamuk should be judged under the old law requiring a direct order from the Ministry of Justice to proceed with the trial. With no such authorisation forthcoming by the time the hearing had begun, the court suspended the trial until the ministry decided on whether or not to try Pamuk.

The manner and content of the response from the government to this juridical question will speak volumes about the current state of a nation that has long prized its national unity above civil liberties. The ruling itself was harshly criticised by members of the European Parliament who were attending as observers. Indeed, most EU legal and political commentators have viewed this trial as a test of freedom of expression in Turkey. According to Camiel Eurlings, European Parliament Rapporteur on Turkey, ‘the [Turkish] government missed the chance to cancel the case and now risks a deterioration of Turkey’s standing in Europe.’ Ollie Rehn, who oversees Turkey’s negotiations with the EU, also stressed that the ‘trial of a novelist who expressed a non-violent opinion casts a shadow’ over negotiations for Turkey's entry into the EU. He added that Turkey’s response presents an ‘opportunity to set a positive precedent for the numerous other cases of free speech that are awaiting trial. It is not Orhan Pamuk who will stand trial tomorrow, but Turkey’.

Joost Lagendijk, Chair of the Delegation to EU-Turkey Joint Parliamentary Committee at the European Parliament, and member of the GroenLinks (Green / EFA) Group, warned that the continuation of the trial would spell trouble for Turkey's hopes of joining the EU. 'If the government says at the end of the day, "Yes, you can carry on with the trial", then Turkey is in big trouble.' He added, 'If new cases like this appear, the negotiating process will come to a halt.' He asked Turkey to amend its penal code since the present one would allow it to imprison people for expressing their opinions.

But Orhan Pamuk is not the only person in Turkey to be charged under Article 301 of the Turkish Penal Code. Admittedly, he is the most famous name, a fact that has helped galvanise such support for him within the EU let alone within Turkey itself. But there are dozens of other people in Turkey who also face charges of "insulting Turkish identity". Indeed, whilst it is true that some recent EU-led reforms in Turkey grant more freedom of expression, the law still prohibits insults against the Turkish identity, the state and Turkey's founding father, Atatürk. The line between illegal insult and legal opinion remains dangerously fuzzy. Article 301[1-4] not only violates directly the right to freedom of expression, but also undermines Turkish commitments under the European Convention on Human Rights and Fundamental Freedoms 1950 (that Turkey ratified in 1954) as well as the two UN International Covenants (CCPR & CESCR) of 1966 (that Turkey ratified in 2003).

In the past few months, International PEN had highlighted other cases that were also processed under this law: those of the Armenian magazine editor, Hrant Dink, publishers Ragip Zarakolou and Fatih Tas, writer Zülküf Kisanak, as well as the five journalists (Murat Belge, Hasan Cemal, Ismet Berkan, Haluk Sahin and Erol Katircioglu) who were charged with "attempting to influence a trial of justice" and "insulting the state's judicial organs" for their newspaper commentaries on a court intervention that had initially halted an academic conference on Ottoman Armenians. The journalists' columns had called the court ruling nonsense, a travesty of justice and an attack on the academic freedom of universities. But a group of nationalist lawyers considered those columns as calumnies, and the men could face trial and potentially imprisonment for up to nine years.

In addition, a prosecutor recently charged two professors with "inciting hatred and enmity" for calling in their report on Turkey to grant more rights to minorities as well as overhaul its approach to national identity. Both academics, Ibrahim Kaboglu, former head of the Human Rights Advisory Council, and Baskin Oran had been requested to prepare the report by the Turkish Prime Minister himself.

Four unsettling trends emerge from those facts. A first trend is an increasing disquietude in many EU circles that Turkish reforms - no matter how reformative - do not meet European standards and often deftly sidestep the enforcement of fundamental rights and civil liberties. A second trend is that those reforms are similar to the tanzimats (re-adjustments) in Turkey between 1839-1876: they had looked effective on paper, but Ottoman Turkey handily scuppered them, and they neither filtered down to the institutions or peoples of Turkey nor were they implemented in practice. A third trend is that the world is singly - albeit rightly - preoccupied with Orhan Pamuk's trial, but there are increasing numbers of Turks against whom the judiciary is applying those same prohibitive and punitive measures. They should not be overlooked simply because they lack the same high public profile. This is why I view Pamuk's case as a litmus test on behalf of everyone choosing to express non-violent opinions in Turkey today. But the most worrying trend is that Turkey is in the throes of a tug-of-war between the so-called 'deep state' of nationalists whose exceeding parvanimity leads them to fight tooth and nail those reforms let alone oppose the opening up of Turkey toward the EU (since it would inevitably mean relinquishing some rights) versus those who are moving Turkey forward in decidedly guarded steps. This overwhelming nationalism, steeped in an ideology that is largely anachronistic to the EU in the 21 st century, is coupled with a bruising sense of pride. They find their most eloquent - and at times unapologetic - homepage on the twin topics of the Armenian Genocide or Kurdish rights (Cyprus being a familiarly different issue), and present obstacles toward reform. In a sense, they remain antithetical to EU-friendly human rights, values, norms and standards.

As Dr Fatme Müge Göcek, Associate Professor of Sociology at the University of Michigan-Ann Arbor, asserted during a public lecture on 2 December 2005 at the International Institute for Genocide and Human Rights Studies in Canada on Turkey, the European Union and the Armenian Question , 'I, as an ethnically Turkish citizen, am not guilty, but am responsible for what happened to the Armenians in 1915. This is a crucial separation that has to be done for transformation.' Dr Göcek stressed that the democratisation in Turkey should go hand-in-hand with its ability to confront its past. This in turn requires the diminution of the nationalist forces in Turkey. She also underlined the extent of the fear inside Turkey to face its past, the lack of confidence to move ahead with the Armenian issue, and the lack of knowledge about the Armenian Genocide as a whole. She concluded her lecture with a critical emphasis on the indispensable need to separate guilt from responsibility.

Both Turks and Armenians should understand that Turkey's reformation, and its possible EU accession, cannot be understood solely as an Armenian sine qua non . Rather, it must be viewed as an EU-wide one. As the philosopher and sociologist Amatai Etzioni indicated in Europe: a generation-to-generation beautiful idea? on the pages of the Newropeans magazine this month, 'adding Turkey to the European mix even makes it more impossible [for the EU] to cooperate [and] only countries that want a weak EU, like Britain and the USA, are strongly in favour of Turkish accession.' Indeed, the "megalogues" taking place across most of Europe about the expansion of the EU and the admissibility of new member-states [such as Turkey] is as much a Eurocentric discourse that defines the insularity of our current EU institutions and their lack of popular roots as it is a Turkish one that aspires to find fresh breath within the EU fold for the Turkish political establishment in power today.

I have consistently maintained that welcoming Turkey into the EU fold is beneficial both for Turkey as much as for the EU. On the basis of the evidence so far, I decline to back down from this position, but I also maintain that such accession can only be achieved once Turkey has truly reformed itself in order to fit into the milieu to which it has applied to become member. After all, and much as this might regrettably be perceived as overweening by some readers, it should be underscored that it is Turkey who is knocking at the doors of the EU - and not the other way round. Is it therefore not normal to expect a guest to behave according to the rules of the host - especially when the guest also wants to move in and live with the host in the same house?

Last week, an interesting slice of history repeated itself in Istanbul. As far back as March 1985, the internationally renowned playwrights Arthur Miller and Harold Pinter had visited Turkey on an International PEN mission to investigate the plight of writers in Turkish prison. Orhan Pamuk, who had just published his third book of the time, The White Castle , was to serve as a guide to the two visitors. Now, in December 2005, it is Orhan Pamuk who is standing in the dock in Turkey, and his valiant stand against a law that muzzles individual and collective rights will hopefully help protect many writers, thinkers and journalists in Turkey - today and for the future.

In the end, fundamental freedoms are hard to gauge and even harder to incorporate into any system that is used to excessive statist control. But who claimed that the price for freedom is cheap in our compromised world today?

© hbv-H @ 27 December 2005
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