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CRAG E-Alert - 14 July 2005

Dear Friends & Supporters:

REPEAL OF REFERENCE TO ARMENIAN GENOCIDE FROM ARTICLE 305 OF TPC

CRAG refers to our d-base e-alert of 11 July 2005 regarding Article 305 of the Turkish Penal Code. As you may well recall, we cited the OSCE Representative on Freedom of the Media, Miklos Haraszti, who had praised the Turkish authorities for introducing important amendments to the new Turkish Penal Code.

In relation to the said Article 305 on "offences against fundamental national interests", the OSCE had noted that two examples in the explanatory "Reasoning Document" - making it a crime to demand the withdrawal of Turkish troops from Cyprus or to claim that Armenians were exposed to genocide - had been removed from the Turkish Penal Code.

You can read the full Press Release on http://www.osce.org/item/15572.html

Brief Legal Commentary

Although this step points in the right direction, we believe it remains largely cosmetic. The text itself of Article 305 (prohibiting "acts against the national interest") never explicitly criminalized claims in relation to the Armenian Genocide or in relation to calls for withdrawal of troops to from Northern Cyprus. Those two references were controversially included in the explanatory note attached to the draft law when it was first presented to the Turkish Parliament last year as examples of "acts against the national interest".

Such an explanatory note does not enjoy any legal status - at best it can be deemed of persuasive authority - so while it might seem that Turkey has 'amended' the record by removing any mention of these examples, it failed to address the core concern that Art 305 may still be easily invoked by Turkish prosecutors to charge people who articulate these - or any number of other - acts that may be classified in this way as being hostile or inimical to Turkish fundamental national interests.

In other words, Turkey has tried to placate the EU Commission by seemingly removing a wordy - but legally ineffectual - issue that had galvanised some lobbying circles, but kept the major offence as a crime that is still punishable by up to ten years imprisonment.

In other words, all the Prosecutor in Ankara needs to do now is to argue in court that the mention of the Armenian Genocide is against the fundamental national interest of the Republic and thereby invoke the punishment Art 305 metes out. This commentary relies not on a 'golden' but rather 'literal' interpretation of legislation.

If Turkey were convinced that references to the Armenian Genocide and the occupation of Northern Cyprus are indeed not detrimental to Turkey's national interests but are against EU-steeped freedoms of expression, it would not simply tinker with details but could repeal Article 305 itself and then perhaps seize the initiative by recognising the Armenian Genocide and withdrawing its occupying troops from Cyprus.

We hope that the OSCE would take this opinion under advisement.

CRAG today also wishes all Armenians and non-Armenians of French nationality or background who are friends and supporters of CRAG in the UK or elsewhere a happy Jour de la Bastille that celebrates the three fundamental principles of the French Revolution so lacking in our globalised but fractured world today.

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