Thought is Absolutely Free High Court Says

Supreme Court of Appeal (Yargıtay) in historic hearing returns the conviction of columnist Selahattin Aydar of Islamist Milli Gazete previously ruled out by a local court for violation of Article 312/2 of Turkish Penal Code (TCK). The Supreme Court justifies the verdict with the argument that “Turkey’s secular public order is such firmly established that counter-secularist opinions should be granted maximum freedom of expression.”

Supreme Court also redefines "public order" protection of which has provided a major ground for punishing thought or press so far.

Freedom of Expression is the Main Principal

The court bases the verdict on the argument that “Restrains on freedom of thought should be in line with the national and international norms. Freedom of expression is the basis of various liberties and source of self-improvement for both the individual and the society. Contemporary democracies leave room for these liberties and perceive them as a part of freedom of expression.”

Criticism on Article 312

Supreme court also interprets Article from the point of view of call to violence: “312 aims at preventing prospective hatred among different social groups, though the criteria of crime is not so clear. Conviction based on this article presupposes a public discrimination on religious, ethnic, cultural, class base to cause confrontation and hatred among the parties. To be punished, the action should also call for violence and threat the ‘public order’”.

Punishment is no solution

“Article 216, in the new penal code, amending Article 312, admits ‘open danger’ as the precondition for the crime,” the court underlines. And adds: “Ideas gather supporters when they are banned. When not, plurality of democratic environment disarms the ideas if they are harmful.”

A new understanding of public order is necessary

The court also calls the public “to understand that an oppressive order imprisoning ideas is not necessarily superior to social tolerance providing mutual survival for different opinions.”

“Values and norms suggested by the administration cannot be always in line with the concept of ‘public order’," they say.

“Freedom of thought is not only for ideas supported by all but it is also viable with ‘irritating or even shocking ideas’ as ruled out in most cases in the European Human Rights Court.

Decision taken with 14 against 13

13 judges of the Court voted against 14 judges. "An opinion denying freedom of expression cannot enjoy the same freedom" opposes Ersan Ülker, one of the minority judges. He recalls the Sivas, eastern Turkey, incidents in 1993 when Islamic fundamentalists set a hotel afire to burn to death secularists artists, guests to a local festival. (OA/EK/YE)