Court decree



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By means of studies of archives in America, England and Geneva (United Nations Geneva Archives C.1424/483 7921/25899), it has been established that between 1914 -1920 a total of 648,000 Armenians emigrated to Russia, Iran, the USA, Australia, India, Argentina, France and other countries; that 200,000 soldiers of Allied countries died while fighting against the Ottomans; and that the Armenians who remained in Ottoman lands or came back were 644,900 as of 1918 (Ermeni Tehciri, Yusuf Halacoğlu, Babıali Kültür Yayıncılığı, Istanbul, 2007, pp. 108-109). It is also known that 120,000 Armenians emigrated to Greece immediately after the expulsion of Greek forces from Anatolia in 1922. The number of Armenians who lived in Anatolia and who returned where they had been living before the treaty of Sevres is mentioned as 644,900 in American archival documents (Sürgünden Soykırıma Ermeni İddiaları, Prof. Yusuf Halacoğlu, p. 101). This number corresponds to the numbers provided by the Armenian Patriarchate. It is known that as of 3rd February 1916, 500,000 Armenians had reached Syria (Sürgünden Soykırıma, Prof. Yusuf Halacoğlu, p. 101). “During the second half of 1915 and in 1916, all the refugees who had survived the massacre at Van, Eleşkirt, and, Basen, tens and hundreds of thousands of people, came to the Armenian counties of Russia. These refugees were dying of hunger before my very eyes. We were helpless to save the lives of these good people; we decided that the reason for this was the treacherous policies of the Russian government. Clearly, our volunteer forces were trying to take Van and Muş as soon as possible.” This quotation clearly proves that the Armenians of Eastern Anatolia created armed units that fought the Ottoman Armies (Ovanes Kaçaznuni, Ermenistanın İlk Başbakanı, Taşnak Partisinin Yapacağı Bir Şey Yok, report submitted to the party conference of 1923, translated by Arif Acaloğlu, Kaynak Yayınları, 2006, pp. 34-37).

The famous Harbord report quotes a letter written by Boghos Nubar on 11th December 1918 and sent to the French Foreign Ministry, in which it was stated that there were 40,000 Armenian refugees from Anatolia in Iran and 250,000 in the Caucasus, and that help was requested.

Attempts are being made to calculate the number of Muslim Ottoman citizens who had to emigrate, and their casualties. How many Turks were massacred in Eastern Anatolia during the Armenian and Russian occupation? Western countries have not felt the need to carry out detailed investigations on this matter. Following the Russian Revolution of 17th February, Russian armies retreated from Eastern Anatolia. If this revolution had not occurred, the number of dead would never have been calculated, because there are no historic records taking into account the non-Western dead.

On 4th March 1919, the Ottoman government of Grand Vizier Damat Ferit Pasha had Mustafa Pasha, who was from Diyarbakır, establish a special court. This special court, which has come to be known as the Nemrut Mustafa Pasha Court Martial, sentenced to death on 8th April Kemal Bey, who was the sub-governor (kaymakam) of Boğazlıyan, for his role in the deportation. Special courts were established in many parts of the country. 1397 people were tried in these courts. Some of the people who committed crimes during the Armenian deportation were sentenced to various punishments, including death.

General James Harbord, who was officially appointed by the U.S. government to carry out studies of Turkey and the Middle East, arrived in Istanbul on 2nd September 1919. On 20th September 1919, he was in Sivas where he asked Atatürk his opinion of a mandated administration for Turkey. From 25th October onwards he was in Erzurum, in the Caucasus and in Syria for investigations. In Hasankale in Erzurum province he wrote reports about Armenians having burned Turks’ houses with their inhabitants in them. In England Lord Curzon spoke in the Commons about the massacres carried out by Armenians. Had it not been for this report, the Turks being held in Malta might have been convicted on 8th February 1921 in the English court. As it happened, Armenian claims were not accepted by the court in Malta.

On 16th March 1920, British forces occupied Istanbul. They established a special court on the island of Malta. As of the end of 1920, there were 118 people being held by this court. 55 were being held on the basis of accusations related to the deportation. 17 of the deportation suspects were being tried for having allowed these events to happen. On 8th February 1921, the English Crown prosecutor stated that there was no proof; later, on 13th July 1921, these prisoners were declared to be war prisoners, subject to an exchange with prisoners held by the Ottoman State.

Aram Andonian’s book about documents related to the massacre of Armenians was written in 1920 in Paris. If the contents of this book had not been false, they would have brought about the conviction of the Ottoman authorities sent to Malta after being apprehended by Armenians when General Alleby [sic] entered Aleppo, because the English court in Malta issued its sentence a year later. In the cable sent on 22nd April 1920 by the English High Commission in Istanbul to the English Foreign Office, those whose arrest was proposed included, in addition to those sent to Malta, Mustafa Kemal Pasha, Ali Fuat Pasha, Kazım Karabekir Pasha, Abdulkerim Pasha, Nihat Pasha, Hasan Rıza Pasha, Ahmet İzzet Pasha, İsmail Fazıl Pasha, Cafer Tayyar Bey, Selahattin Adil Bey, and İsmet Bey (Bilal Şimşir, Malta Sürgünleri, Istanbul, 1976. And see the English Foreign Office Public Record Office document number [FO] 371/5090/9632).

The Armenians organized attempts against Atatürk, İsmet Pasha in Lausanne, and the Turkish Delegation at the UN in 1945 in San Francisco (Tuncay Özkan, Yaraya Tuz Bastım, Istanbul, 2007, pp. 472-473).

Wars are a terrible gamble, during which there is an enormous amount of destruction, death and betrayal, and which have an indefinite end both for the instigators and those continuing the war. Since every war that is not a war of necessity is tantamount to murder, the great Atatürk decreed the principle of “Peace at Home, Peace in the World” to be the main aim of the Republic of Turkey. By signing the Treaty of Gümrü with Armenia, then governed by the Dashnak Party, on 2nd December 1920; the Treaty of Moscow with Russia on 16th March 1921; and the Treaty of Kars with Armenia, Azerbaijan and Georgia on 13th October 1921, the wars in Eastern Anatolia were officially ended and peace was introduced.



From a sociological point of view, every war creates a sense of repulsion, hatred and dislike for the opposite side in the hearts of the people party to the war. As for events that could be considered genocide, they create a sense of intolerance against each other in daily life that is stronger even than that caused by war. The relations between the Armenian and Turkish people after the First World War should also be studied within the context of determining whether or not the claim of genocide is correct or not.

The existence of various peoples in Anatolia has been considered a source of cultural wealth, because of their separate origins and cultures, within Atatürk’s principle of populism. Individual acts of fanaticism can be seen throughout the world. The Turkish people of Anatolia consider every nation as being part of the same system of existence (Hak, absolute truth or existence), of which they are also part. It is clear that the Turkish people will continue to show Armenians the tolerance that is to be shown to all humanity, as expressed in these verses by Yunus Emre, the foremost poet of Anatolian folk literature: “As for the prophet of evil, Who looks not at seventy-two nations, As One, He is in opposition to Truth.” Contrary to what is generally believed, the Turkish people have a culture of grieving about the Armenians and the First World War. However, in the Republic of Turkey, this culture has not turned into a continuing hatred. The effects of this grieving are still visible on the people of Eastern Anatolia. Armenian bands used the scarcity of population in the rural areas of Anatolia to their own ends; this population scarcity was caused by the fact that, as a result of the general mobilisation, Turkish males were sent to guard Arabs and to defend the country in the Balkans and in Gallipoli. The Jews, who were expelled first from the Roman Empire by Titius, following the conquest of Jerusalem in the 80s AD, and then once more from Spain in the 16th century, received the greatest support from Turks, notwithstanding all kinds of religious prejudices. Nowadays there are no Turks in Armenia. In no country that they conquered did the Turks exterminate the local people for the use of their natural resources, nor did they carry out complete destruction. In no place did they condemn the local population to death by starving, through the acquisition of foodstuffs at high prices. They managed to hide their suffering in their hearts, they did not kill innocent people seventy years after defeats, and they respected the treaties that they had signed. Countries that have undertaken to follow other people’s political aims cannot bear this load forever. Those who have gotten involved in illegal organizations and terror should be aware of this truth. (As in the case of Russia in the past.) Turks respected other people’s moral rights even during war. Following the liberation of İzmir, Atatürk refused to step on the Greek flag that was placed at his feet. The Republic of Turkey has remained as a civilized neighbour, within the framework of Atatürk’s principle of “Peace at Home, Peace in the World.” Turks have taken their place in history as a nation with clean hands and conscience. As proof of this we can show the fact that when Turks were treated very cruelly in Karabagh, in very recent times, no Armenian was mistreated in Turkey. There is no similarity between what happened in Germany during WWII and what happened to Turks and Armenians during and immediately before WWI, from the point of view of the reasons, results, ways of realization and decisions taken by the Ottoman State. In various places of Anatolia there are still functioning Armenian churches with congregations. At the beginning of Turkey’s constitution, the principle that all Turkish citizens are equal so far as rights and duties to the national body are concerned is stated and guaranteed. Article 176 of the Constitution added the founding principles to the Constitution. The reason for the existence of the Turkish State and its main philosophical approach are defined at the beginning of the Constitution. There is no discriminatory approach towards Armenians. In his books titled Atını Nalladı Felek Düştü Peşime (Fate Shod its Horse and Pursued Me) and Seferberlik Türküleriyle Büyüdüm (I Was Raised with Songs About Mobilization), the Armenian writer Kirkor Ceyhan, who was born and raised in the Sivas area, described with passion his commercial and sincerely amicable relations with his Turkish neighbours, and also how compassionate Mustafa Kemal was. On page 30 of Atını Nalladı Felek Düştü Peşime (Aras Yayıncılık, 2000), he mentions Armenians who converted to Islam and remained in Zara. He emigrated to Armenia, but returned to Turkey because he was not happy in Armenia. He mentions letters received from France and from South American countries in the aftermath of the Turkish War of Independence. After the end of the First World War, Armenians received the support of the powerful philanthropic organizations and religious organizations of the West because they were of the same religion, while the Anatolian Turks, who had survived massacres in which people were burned in their houses or thrown into wells, and who were suffering from famine, did not receive any help from within the country or from other countries. This is why this other aspect of the destruction in Anatolia has not been sufficiently perceived by world public opinion. (James Harbord’s report includes only partial information on how Turks were burned alive, which he learned about as he was travelling. The archives of Azerbaijan, Russia, Armenia, Turkey and Western countries have not yet been comparatively studied.) Since the end of the war, the Turkish and Armenian people of Anatolia have carried out their own interpretation and self-criticism of what happened in the past. It is said that [the Armenians] were deceived by the Russians and entrapped by others. In many places of Anatolia there are Turkish citizens of Armenian origin; there are cases of intermarriage between Armenians and Turks. In the villages of Anatolia, Armenians and Turks cooperate socially in their daily lives. The simplest example is provided by the fact that on the highlands of Anatolia, villagers take turns looking after each other’s herds, and the same water sources are used. Armenians are also accepted socially in the villages. When an Armenian who has remained in an Anatolian village dies, all the neighbours grieve, and when a priest cannot be found, the Christian Armenian is buried according to Muslim customs. Both communities are integrated within the Republic of Turkey. In present-day Turkey there are Armenians who break records with the taxes that they pay, who are respectable academicians in universities, factory owners, partners in business with Turks, and those who run profitable businesses like jewelry making. The fact that these Armenians have a standard of living higher than that of those living in Armenia and of the Turks living in the steppes of Anatolia, shows clearly that they are not excluded.

The facts that in 1914 an Ottoman army was destroyed when its soldiers froze to death in Sarıkamış; that because of the general mobilization most Turkish males were fighting at Gallipoli, in the Balkans, and in the deserts of Arabia, with the result that villages had been depopulated; that Russian and Armenian troops were occupying the area; that because of its deep valleys and insurmountable mountains Eastern Anatolia could not, under the conditions then existing, be controlled by the state; and that all important passes were under the control of Armenian bands, prove clearly that the Turkish nation is not responsible for these events.

An evaluation of the claims of genocide from a legal perspective: the concept of genocide was introduced to international law as a result of the fact that 60 million people perished during the Second World War. This concept, which was created to express a concept different than war, brings to mind an intention to exterminate and totally destroy a certain group of people.

When we analyze all the events in history from the point of view of this concept, will we have to consider Allied bombings of German cities during the Second World War as genocide? Will the mass deaths resulting from earthquakes caused by fault lines being hit by nuclear explosions carried out in the depths of the ocean be considered scientific genocide? There are cases when many deaths occur predictably, even though there is no war.



According to the convention on genocide adopted by the General Assembly of the United Natıons on 9th December 1948, the existence of genocide does not depend solely on the number of people killed. What is important is an intent to carry out ethnic cleansing. Otherwise all wars will have to be considered genocide, and in this way the aim and intention of the convention will be distorted. Like all living organisms, states have the right to self-defense. This point is one of the main principles of international law. Within this context, the fact that 644,900 of those Ottoman Armenians who had been deported to Syria returned home, and the fact that the state had assigned sums of money from its budget for their food, prove clearly that this activity, when looked at in general terms, did not aim for the extermination of a people on a geographical basis. It is clear that the precautions adopted aimed for a reduction of the negative effects of war in the places where the Ottoman army was fighting the Armenian-Russian army, and that as such they were in accordance with international law. According to article 15/1 of the present-day European Human Rights Convention, whenever there is a war or another general danger threatening the existence of a nation, all parties that have signed the convention will be authorized to take all legitimate precautions required by the situation and that are in accordance with the rules of the convention. On the basis of the general spirit of this convention, we can state that the decisions and precautions adopted by the Ottoman State within the circumstances of war were in accordance also with present-day law.
THE LEGAL EVALUATION OF THE ACT
The truthfulness of the claim of genocide has not been considered to be worthy of being considered a preliminary legal problem, even formally.
It has been argued that the act be evaluated on the basis of freedom of expression.
Freedom of thought is the freedom to tell to others what emerges from a person’s cerebral activities, or in other words to present to others what is represented in the mind. The power to think is a natural right, as it is part of human nature. Since, from a developmental point of view, this can turn into propaganda that destroys freedom, there have been conflicts with scientific, political, religious and similar authorities. Like all other freedoms, freedom of thought, which is one of the most important elements of the system of legal values of our age, is not unlimited, because of the destructive effect that it might harbor within itself when left completely free, since it might drag masses of people that would prove impossible to be stopped by legal means to react excessively and to exercise destructive violence. On the other hand, when limited excessively it might lead thought to go underground and turn into an uncontrollable force and become dangerous for the legal system. Since freedom of thought is the fundamental means for democracy and scientific development, it represents a lofty value. Freedom of thought is the freedom of a person to develop a thought freely, not to be blamed for a thought or view, and to impart a thought via legitimate means. Freedom of thought is subject to regulations in international and domestic law.
Article 10/1 of the European Convention on Human Rights states that “Everyone has the right to express views. This right includes the freedom to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Article 25 of the Turkish Constitution states that “Everyone enjoys freedom of thought and of opinion. No one can be forced, for whatever reason, to express their thoughts and opinions. No one can be blamed or indicted because of their thoughts or opinions.” Article 26 of the Constitution contains a regulation parallel to Article 10/1 of the European Convention on Human Rights. Article 26 of our Constitution contains a regulation concerning freedom of the press.
The fact that freedom of expression is not absolute and unlimited and that it needs to be constrained up to a point, is subject to regulations in international and domestic law.
According to Article 10/2 of the European Convention on Human Rights, the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
According to Article 2 of our Constitution, the Republic of Turkey is a democratic, secular and social state governed by the rule of law, based on the main principles expressed at the beginning of the Constitution, on public peace, national solidarity and justice, respectful of human rights and devoted to Kemalist nationalism.
According to Article 13 of our Constitution, fundamental rights and freedoms can be limited by law, for reasons stated in the Constitution.
According to Article 14 of our Constitution, “None of the rights and freedoms stated in the Constitution may be used in the form of activities aiming to disrupt the indivisible integrity of the state and nation or to destroy the democratic and secular republic based on human rights. None of the provisions of the Constitution can be interpreted in a way that enables activities aiming to eliminate or to expand more than is specified in the Constitution, the fundamental rights and freedoms, which are ascribed to the state and to the people via the Constitution. The sanctions to be applied concerning those who act against these provisions are regulated by law.” According to Article 26/2-3 of our Constitution, on the freedom of the press, “The use of these freedoms can be limited in accordance with aims such as the protection of national security, of public order, of public security, of the fundamental characteristics of the Republic and of the indivisible integrity of the state and nation, the prevention of crimes, the punishment of criminals, the prevention of the disclosure of information specified as a state secret, the protection of the reputation and rights of others, of the private and family life of others, of the information specified by law as a professional secret, or in order for prosecution to be carried out as required. Provisions concerning the use of media for the dissemination of news and thoughts are not considered to be limiting the freedom to express or spread thoughts, as long as they do not prevent the broadcast of these news and thoughts. The form, condition and method to be applied in the use of the freedom of expressing and disseminating thoughts are regulated by law.”
Article 3/2 of Law No. 5187 on the Press contains regulations parallel to Article 26 of the Constitution.
When Articles 2, 3, 14 and 26 are taken into consideration together with Articles 10/2 and 17 of the European Convention on Human Rights, the conclusion is reached that as necessary precautions, freedoms need to be subject to certain forms, limitations and sanctions as provided by law, in order to protect national security, the territorial integrity of the state, public security and public order, to prevent crimes from being committed, and to protect the authority and impartiality of the prosecution (Decree number 2006/9-169-184 of the General Board of Criminal Panels of the Supreme Court).
As the fact that other people commit crimes does not give the defendants the right to commit the same crimes, this defense has not been taken into consideration and a letter has been written to the Prosecutor’s Office of Şişli for this matter to be duly investigated.
Although the precedents set by the European Court of Human Rights concerning the fact that the limitation of freedom of expression on the extermination of Jews in France is groundless have been presented for the files, the Jews in Europe have never formed an armed army against their states; they have not joined the armies of other states to conduct massacres on mountains, in villages or in valleys, in the centers of provinces and counties. Here we have a historical truth in that there was a war and that these wars ended and a period of peace began when treaties were signed with Armenia and with Russia. The public order in Turkey has undergone a major trauma because of these crimes. The precedents set by the European Convention on Human Rights have been set thus because the Jews were not party to a war. It is therefore clear that these precedents cannot be generalized and cannot form a basis for all limitations of freedom of expression, but that they can bring a criterion to the Convention. Indeed, according to the articles of the European Convention on Human Rights that have been examined, from the point of view of public order in Turkey, the limitation in Article 301 of the Turkish Penal Code has been evaluated as not having exceeded a need.
According to the European Court of Human Rights, national authorities have judicial discretion in the limitation of freedoms, and even if it be a necessity, from the point of view of a democratic society, the limitation should not be set too high. Necessity should not require extreme limitations. Limitations should be necessary, realistic and credible.
The article in question contains the claim that the Armenian nation has been living in these lands for four thousand years, that this nation has been subjected to genocide and destroyed by the Turks, and that this nation has perished.
Although there has been an attempt to turn the article in question into a news item, from the perspective of its meaning and text, in the eyes of Turkish citizens of Armenian origin and ordinary citizens, the article has accused the Turkish nation of committing genocide. The information that signatures have been gathered in support of Dink, contained in the text of the article, constitutes a simple detail, separate from the section that confirms the genocide.
The article in question was published on the front page of the 21st July 2006 issue of the weekly Agos Newspaper, published in Turkey, in Turkish and Armenian. In accordance with Article 11/3 of the Law on the Press, if the author of the article is not mentioned either in the article or in the newspaper, the owner and the executive person above the director in charge of the periodical have criminal liability, and the act has therefore become the subject of penal prosecution.
According to the implementation by the Supreme Court, the insult should be directed at Turkishness. Turkishness means the spiritual side of being Turkish and the Turkish identity. In this context, general and all encompassing acts directed at Turks are to be regarded as crimes (Decree No 2006/9-169-184 of the General Board of Criminal Panels of the Supreme Court).
It is quite clear that, because the British, French and Armenian-Russian armies occupying Anatolia conducted massacres against the Turks in various provinces during the war, and the Armenians were party to the war in support of the occupying forces, the legitimacy of the precautions taken cannot be considered separately from the notion of Turkishness. By accusing the Turks of genocide, it is accepted that an act has been committed that constitutes a crime according to article 301 of the Turkish Penal Code.
The defendants live in Turkey. They are in a position to know that Eastern Anatolia is mountainous; that it is very difficult for the state to exercise control in daily life; that Turks living in the region experienced a very serious grievance by the Armenians and Russians in the events before the War of Independence; and that the Turkish people suffered because of these events. The act is aimed to disrupt public order in Turkey. The defendants’ action therefore contains an element of criminal intent, aiming to violate public order in Turkey.
The defendants should therefore be punished.
In reaching a decision on the sentence, in light of the fact that the attribution of genocide is considered the most serious offense against a nation, and considering that the fact that the crime has been committed via the press requires that the defendants be given a sentence higher than the lower limit in the Article of the Law; but also considering that the defendants have experienced a grievance following the publication in the newspaper of the article in question, and since the fact that they have committed a crime for the first time and they have not committed any acts that require conviction apart from the pending case requires that their sentence be reduced, our court has reached a decision on the following sentence.
THE SENTENCE:
It has been established by the court that the defendant Serkis Seropyan and the defendant Arat Dink have published an article accusing the Turkish nation of genocide; because of the gravity and consequences of the accusation, because the crime has been committed via the press, because of the characters of the defendants and the grievance that the defendants have experienced following the act, it has been decided that each defendant be sentenced to a higher prison sentence of 1 year, in accordance with Article 301 of the Turkish Penal Code,
That there are no legal or extenuating circumstances for the defendants’ sentence to be increased or reduced,
That, taking into consideration the character and the absence of a criminal record of the defendants, the sentence be SUSPENDED, in accordance with Article 51 of the Turkish Penal Code,
That the prosecution expense of YTL 7 for the two summonses to this court be collected from the defendants, in favor of the treasury,
That as part of the sentence, they have the right to file a petition to our court or a statement to the court clerk, within 7 days after the communication of the sentence, which was given in their absence.
In the absence of the defendants, and in the presence of the Public Prosecutor, the sentence that has been decided on was explained to the lawyers Fethiye Çetin, Akın Atalay, Fikret İlkiz, Basri Akyüz, Zeynep Aydın, Filiz Kuruçaykı, Arzu Becerik, Berrak Bilgin, Erdal Doğan, Hakan Bakırcıoğlu and Fırat Söyle and it was stated that the defendants have a right to apply to the Supreme Court.
11th October 2007
Clerk 100157

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