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PerihanRAPID ACTION NETWORK
24 February 2016

RAN 04/16

Turkey: Writer on trial for alleged criminal defamation

PEN International is concerned at news that Turkish writer and columnist Perihan Mağden is facing trial for allegedly defaming the President of Turkey, Recep Tayyip Erdoğan under Article 299 of the Penal Code which criminalizes ‘insulting the President of the Republic of Turkey’.  If convicted, she faces a possible prison term of up to four years. The charges were brought after Erdogan’s lawyer lodged a complaint about an interview on diken.com in which Mağden described President Erdoğan as a ‘wild tiger’  and ‘like a wild animal trapped in a corner’ in response to questions about a police raid on the offices of Nokta magazine in September 2015, shortly after the magazine published a story about Erdoğan after which the Nokta magazine’s Editor-in-Chief Cevheri Güven and Managing Editor Murat Çapan were arrested. The first session of her trial is set for 12 May 2016.

PEN International opposes the criminalisation of defamation in all cases and calls on the Turkish authorities to drop these charges against Mağden for her legitimate expression as a political commentator.

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Please send appeals:

  • Expressing concern at the charges of defamation brought against  Perihan Mağden and urging that they be dropped;
  • Calling on the Turkish authorities to decriminalise defamation including against the president;
  • Reminding them that the limits of acceptable criticism of politicians and senior public officials are wider than for private individuals, as has been determined repeatedly in international law such as in the case of Tuşalp v Turkey before the European Court of Human Rights;
  • Reminding them that Turkey has the obligation to respect the right to freedom of expression under the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), to which it is a state party.

Appeals to:

President Recep Tayyip Erdoğan
Cumhurbaşkanlığı Sarayı
06560, Beştepe
Ankara, Turkey
Fax: +90 312 525 58 31
Email: cumhurbaskanligi@tccb.gov.tr
Twitter: @RT_Erdogan

Prime Minister Ahmet Davutoğlu
Vekaletler Caddesi Başbakanlık Merkez Bina
P.K. 06573; Kızılay, Ankara
Turkey

Minister of Justice Bekir Bozdağ
Milli Müdafaa Caddesi No: 22
Bakanlıklar
06659, Kızılay
Ankara, Turkey
Fax: +90 312 419 33 70
Email: bekir.bozdag@tbmm.gov.tr; ozelkalem@adalet.gov.tr

Twitter: @bybekirbozdag
**Please send appeals immediately. Check with PEN International if sending appeals after 24 March 2016.***
Please copy your appeals to the Embassy of Turkey in your country.  A list of embassies can be found here.
Please send us copies of your letters or information about other activities and of any responses received.

Publicity

PEN members are encouraged to publish articles and opinion pieces in your national or local press highlighting the case of Perihan Mağden and the situation of freedom of expression in Turkey. Please also consider adopting her as an honorary member of your Centre.

Background 

Born in Istanbul in 1960, Perihan Mağden graduated in psychology from Bosphorous University. She has written novels, poetry, short stories and works as a journalist. Mağden wrote for the Turkish

newspaper Radikal from 1997 to 2000 and was sued by the Turkish Government for an exposé on State practices. She is the author of Messenger Boy Murders, The Companion, 2 Girls, Escape, Ali and Ramazan and Yıldiz Yaralanması (Star Wounds). Her novel, 2 Girls, a bestseller in Turkey, was adapted to film by Kutluğ Ataman and premiered at the London Film Festival. Her novels have been translated into more than 20 languages including English, German, Italian, Spanish, Russian, Korean, Portuguese, French and Dutch. She was awarded the Grand Award for Freedom of Speech by the Turkish Publishers Association. Writing for PEN International magazine in 2006, the Nobel laureate Orhan Pamuk said Magden is, ‘one of the most outspoken and inventive writers of our time…she combines a flair for the grotesque with a humane sensibility to evoke a world all of her own’.

In July 2006 Mağden was acquitted of ‘alienating the people from military service’ for an article she wrote in defence of an imprisoned conscientious objector, Mehmet Tarhan. PEN International observed her trial. She was also acquitted in two cases of alleged defamation in November 2006 in connection with her writings (see 2006 Case Lists).

Criminal defamation has increasingly been used by high-ranking politicians in Turkey to penalise critical and dissenting views.   Defined as a criminal offence under Article 125 of the Turkish Penal Code, defamation carries a maximum sentence of two years in prison. Defamation of the president allows for a higher maximum sentence of four years. Denigration of ‘the Turkish nation, the state of the Republic of Turkey, the Turkish Parliament, the government of the Republic of Turkey and the legal institutions of the state’ is prohibited under Article 301 of the Penal Code.

During his time as prime minister, President Erdoğan brought a raft of defamation cases against writers and intellectuals for their legitimate if harsh criticism of him and his policies. Since 2003, Erdoğan has been bringing increasing numbers of such cases against ordinary members of the Turkish public who have engaged in harsh criticism of him via their social media accounts. This litigious culture creates a chilling effect on free expression in Turkey, where writers and ordinary members of the public are afraid of criticising Erdoğan or engaging in political speech about him, particularly now, as President, a conviction could result in up to four years in prison – a situation which the European Court of Human Rights (ECtHR) has found incompatible with the protection of freedom of expression in the European Convention on Human Rights.

International human rights standards put a high value on uninhibited expression in the context of ‘public debate concerning public figures in the political domain and public institutions. ’ The Human Rights Committee has been clear that the ‘mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties’.

The Organisation for Security and Cooperation in Europe’s (OSCE) Parliamentary Assembly has repeatedly called for the abolition of all laws that provide criminal penalties for the defamation of public figures or which penalise defamation of the state or state organs. The UN, OSCE and Organisation of American States (OAS) Special Mandates have gone even further, stating: ‘Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.’

ECtHR case law has repeatedly found against Turkey in criminal defamation cases. For example, in Tuşalp v Turkey, (a defamation suit brought by Erdoğan against journalist Erbil Tuşalp) the ECtHR found that his criticism of Erdoğan fell within the scope of political debate and was in the public interest, and reiterated that freedom of expression applied to information or ideas that offend, shock or disturb. The judgment also found that the limits of acceptable criticism are wider for a politician than a private individual.

PEN International adopted resolutions calling for the repeal of defamation and insult laws in 2014 and 2015.  For more information about the situation of freedom of expression in Turkey, please see PEN International and PEN Norway’s December 2015 report Surveillance, Secrecy and Self-Censorship: New digital freedom challenges in Turkey.

For further information please contact Ann Harrison at PEN International, Koops Mill Mews, 162-164 Abbey Street, London SE1 2AN, Tel.+ 44 (0) 20 7405 0338, Fax: +44 (0) 20 7405 0339, email: ann.harrison@pen-international.org 

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