DECISION AGAINST EREN KESKIN BY KARTAL 3rd CRIMINAL COURT OF FIRST INSTANCE, ISTANBUL

CLAIMANT: Public law

DEFENDANT: Eren Keskin (Lawyer, married, without children, without criminal record)

COMPLAINANT: Prof. Dr. Necla Arat (Lecturer at the Istanbul University, Faculty of Literature)

NATURE OF OFFENCE: Insulting Turkish Armed Forces

DATE OF COURT RULING: 14.03.2006

INDICTMENT:

The prosecution claims that the defendant Eren Keskin, in her speech at a panel discussion in Cologne, Germany, insulted the Turkish Armed Forces, by saying that Turkish Armed Forces had been raping and committing sexual violence against women.

ASSESSMENT OF EVIDENCES AND JUSTIFICATION OF THE DECISION

The Defendant Eren Keskin, while speaking at a panel discussion about women’s rights, said Turkish soldiers had been committing sexual violence against woman inmates, thus publicly insulting the Turkish Armed Forces.  One of the audiences in the meeting Prof. Dr. Necla Arat reported Eren Keskin to have stated that the army was involved in commercial activities resulting in the concentration of the military and financial powers in one hand and that even married women were taken to virginity checks just to torture them. These remarks had been covered by the press as well. In her defence the defendant explicitly stated that she believed in what she said and she still upholds the same views.

Therefore there is no doubt or any dispute as to whether or not the defendant   made these remarks. Hence the question is whether or not the above-mentioned remarks can be considered within the boundaries of “criticism” as defined in Paragraph 4 of  Article 301 of the Turkish Penal Code. However Article 301 of the newly passed Law No.  5237 uses the term “dishonouring” instead of “insulting and degrading” in the previous law. The defendant’s intention in making these statements is to dishonour the Turkish Armed Forces because such expressions as “rape” and “sexual harassment” are aimed to reduce the public respect to the army. Therefore the court has concluded that such words cannot be considered as criticism.

The defendant, Chairperson of the Human Rights Association, aimed to undermine the peaceful environment in the country and also the respect for the army, by publicly expressing the unfounded allegations of a terrorist organisation, and therefore what she said in the panel discussion should not be considered as a social criticism.

Statements such as the above which go beyond the limits of criticism to undermine the trust and respect for the army which is the guarantee of the peace and well-being in the country,  especially if they are made by NGOs who play an important role in the society, are intended to help those who  want to put an end to peace in the country and instigate social unrest. 

It is for this reason that under the present conditions prevailing in the country  such statements which are intended to dishonour the army cannot be considered within the boundaries of the freedom of expression and freedom of disclosing one’s thoughts which is guaranteed by the Constitution. Otherwise it would be impossible to prevent recurrence of such attacks at the most respectful institutions of the country with the aim of impairing them by those who, especially recently,  draw courage from  the EU and the ECHR rulings  and use the freedom of expression as a pretext.  

Particularly those who, by attacking such institutions, in actual fact aim to win awards distributed in Europe should also realize that their behaviour will not be considered as legitimate criticism and have to face the punishment the deserve.

In the light of the above the statements of the defendant, who is the Chairperson of the Human Rights Association,  cannot possibly be considered within the scope of criticism as defined in the 4th paragraph of Article 301 of the Turkish Penal Code. 

RULING:

Therefore  it is concluded that during the panel discussion organised in Cologne, Germany about women’s rights, the defendants’ statements that, among others, the army was directly engaged in commercial activities, that it even bought a bank, that the military power is coupled with financal power, that soldiers subject women inmates to sexual harassment and that even married women were taken to virginity check constitute the offence of “dishonouring” the Turkish Armed Forces, and by doing that she has explicitly committed the crime in question and went beyond the boundaries of criticism. Therefore it is decided that taking into consideration the importance of the subject and the manner with which the offence was committed, the lower limit described in Article 301/2 should not be applied to this case and  that the defendant for this reason should be sentenced to 10 months’ imprisonment. On the other hand taking into consideration the behaviour of the defendant after she committed the subject offence and throughout the trial, it is decided that no commutation of sentence as indicated in Article 62 of the Turkish Penal C ode should be applicable to her case.

It is also decided to convert her imprisonment into fine of YTL.20 for each day amounting to a sum total of YTL.6000.

It is also decided that there should be no need to defer her sentence under Article 51/b of the Turkish Penal Code, due to the fact that the defendant showed no sign of repentance throughout the duration of the trial and no sign that she would avoid committing the same crime in the future.

The above ruling of court was read out loud in the court in the absence of the defendant and it was stated that the ruling was subject to appeal.

14.03.2006

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