Court decree

ISSUED IN THE NAME OF THE TURKISH NATION

2nd PENAL COURT OF FIRST INSTANCE

FOR THE DISTRICT OF ŞİŞLİ

FILE NUMBER : 2006/1208

DECREE NUMBER : 2007/1106

PROSECUTION No. : 2006/8617

JUDGE : HAKKl YALÇINKAYA 29884

PROSECUTOR : MÜCAHİT ERCAN 37338

COURT SECRETARY : EMİN ARSLAN 100157

PLAINTIFF : K.H.

DEFENDANTS : 1-ARAT DİNK: Son of Fırat and Rahil. Born in Şişli on 6th September 1979. Registered at Istanbul, Bakırköy, Sakızağacı. With no criminal record. Lives at Bestekar Nihal Akın Street No.2 Apt.7 Bakırköy Istanbul.

2-SERKİS SEROPYAN: Son of Vagarşak and Nuvart Roza. Born in Istanbul

on 10th April 1935. Registered at Istanbul, Fatih, Atik Mustafa Paşa. With no

criminal record. Lives at Sabri Arsudi Aksal Street 170/3 Feriköy Istanbul.

1- Attorney FETHİYE ÇETİN: İstik1al Cd. No: 316/602 Beyoğlu Istanbul

DEFENSE COUNSEL 2- Attorney ERDAL DOGAN: Süleyman Sk. No: 42/5 Kadıköy Istanbul

AND 3- Attorney ERGİN CİNMEN: Tünel, İstiklal Cd. 483/2 Beyoğlu Istanbul

REPRESENTATIVES 4- Attorney BAHRİ BELEN: Tünel, İstiklal Cd. 483/2 Beyoğlu Istanbul

5- Attorney FİKRET İKİZ: Ahmet Fetkari Sk. l9, K: 2 Teşvikiye Istanbul

6- Attorney ARZU BECERİK: Rumeli Cd. Itır Sk. Kristal Apt. 21/1 Nişantaşı

Istanbul

7- Attorney E. İNCİ İŞBULUR: Piyerloti Cd.7/6 Çemberlitaş Istanbul

8- Attorney HAKAN BAKIRCIOGLU: Halaskargazi Cd. 360/7 Şişli Istanbul

9- Attorney EMEL ATAMTÜRK: Tünel İstiklal Cd.483/2 Beyoğlu Istanbul

10- Attorney YÜCEL SAYMAN: Tünel Meydanı Erkan-ı Harp Sk. 3/5 Seferoğlu Apt. Beyoğlu Istanbul

OFFENSE: ACCUSING THE TURKISH NATION OF GENOCIDE, THROUGH THE PRESS, WITH CONSEQUENT INFRINGEMENT OF ARTICLE 301 OF THE TURKISH PENAL CODE

DATE OF OFFENSE: 21st July 2006

DATE

At the end of the trial, initiated in the name of the people, of the defendant whose complete identity has been indicated above, the dossier has been reviewed.

JUDGMENT HAS BEEN RENDERED;

INDICTMENT According to the indictment of the Office of the Chief Prosecutor of Şişli, dated 18th September 2006 and numbered 2006/8617, the words uttered by Fırat Dink during an interview with the Reuters news agency were quoted in part in an anonymous article (“1 signature against 301”) in the issue dated 21st July 2006 of the Agos newspaper. These words were: “Of course I'm saying it’s a genocide, because its consequences show it to be true and label it so. We see that people who had lived on this soil for 4000 years were exterminated by these events.” Since with these words Turkishness was insulted by means of published material, according to article 11/3 of law number 5187 regulating the press, and article 301 of law number 5237 (Turkish Penal Code), a trial in the name of the people has been initiated against Serkis Seropyan, to whom the chief editor reported, and Arat Dink, the chief editor of Agos newspaper, with a request for them to be punished.

In his opinion on the essence of the case, the prosecutor has requested that the defendants be punished on the basis of the indictment.

THE TEXT THROUGH WHICH THE CRIME WAS COMMITTED,

Following publication of the headline “1 signature against 301,” which appeared on the front page of the issue dated 21st July 2006 of the Agos newspaper, which called for an act of civil disobedience against crimes of thought, the Office of the Chief Prosecutor of Şişli initiated a new investigation of Hrant Dink, Chief Editor of AGOS Newspaper, for an interview he gave Reuters.

It appears that in the interview he gave Reuters, Dink stated, “Of course I'm saying it’s a genocide, because its consequences show it to be true and label it so. We see that people who had lived on this soil for 4000 years were exterminated by these events.”

Dink confirmed having stated this during the interview with Reuters and said that this statement was in no way a disparagement of Turkishness, and that he would defend himself in the best way during the legal proceedings.
THE LEGAL STATUS OF THE DEFENDANTS IN RELATION TO THE INCRIMINATED ARTICLE AND THE DEFENSE,
The defendant Arat Dink is the chief editor of the newspaper, and the defendant Serkis Saropyan is, according to his own statement, the person to whom the chief editor of the incriminated newspaper reports. In the case file of Agos Yayıncılık, Basım Hizmetleri, Sanayi Tic. Ltd. Şti. company, it is stated that the Agos newspaper is a weekly concerned with political developments and current events and that, as described by articles 6 and 7 of law number 5187 regulating the press, its responsible chief editor is Arat Dink and its owner Serkis SEROPYAN. The defense has no objection on this point.

In his statements in the presence of the Şişli Prosecutor on 21st August 2006, the defendant ARAT DİNK said that he was the chief editor of Agos newspaper, that he did not accept the crime ascribed to him, and that the news item that was the subject of the investigation, with the headline “1 signature against 301,” was the same as the one reported in the press in those days. He stated that a campaign of support for [Hrant] Dink, who had been tried and convicted on the basis of article 301, had been initiated; that the press had reported this development; and that since the Agos newspaper had just repeated this news item, no crime could have been committed; and that in particular there was no disparagement of Turkishness.

During the session of the trial held on 14th June 2007, the defendant presented a page from a speech read by Hrant Dink at Bosphorus University in September 2006 that was related to the trial. It was said therein: “The issue is that up to this time I have always refrained from using the word ‘genocide’ so far as the Armenian question was concerned. Even though I tried to explain with appropriate terms the whole truth [and] what I knew, I refrained from using that word, because I saw that the people to whom I talked, and with whom I lived, were disturbed by it. I do not want to disturb people. My aim is to establish a dialogue, during which we can tell each other our problems and let our lives flow like this. I always tried to refrain from words and a style that would complicate dialogue. However, if one asks me directly and insistently whether or not what happened was a genocide, and what I would call it, then I cannot deny the truth, what I know, my history and my identity, and I tell people what I know. True enough, this is what I told the Reuters news agency. Previously my words had appeared on the front pages of other Turkish newspapers as well, but no trial was initiated, because the operation to teach me my place had not yet begun; let us see where this process leads us.” The defendant read this text and added it to his defense. He made a statement that was recorded in the court minutes. “A genocide is committed against a race or a nation, but not by a nation. As in all other kinds of crimes, it is committed by individuals, or by illegal organizations created by those same individuals. I consider it as primitive, silly and dangerous that defining a historic event as a genocide be taken as an insult to Turkishness. I am of the opinion that these trials devoid of a legal basis played an active role in the process of targeting my father, Hrant Dink. I denounce all judicial officials who played a role in initiating these trials devoid of legality.”

This is the statement that the defendant SERKİS SEROPYAN pronounced and undersigned on 21st August 2006 in the presence of the Şişli Prosecutor: “I am the responsible owner of the Agos newspaper, and the news item that is the subject of investigation, headlined “1 signature against 301,” is very similar to news items that appeared on that same day in other newspapers. A campaign to support [Hrant] Dink, who had been convicted on the basis of 301, had been initiated, and news about this had appeared in the press. Our newspaper repeated this news. Additionally, the information that the Office of the Prosecutor of Şişli had begun a new investigation of Dink that had appeared in those days on television and in the press, was provided. The news item also provided the reason for the investigation. It was further stated that Dink’s statement could not be considered a disparagement of Turkishness. The said news item appeared throughout the media. It does not contain criminal elements. I am innocent.”

During the court session held on 14th June 2007, he stated that he was the largest shareholder of Agos newspaper, that he was the official owner, and that if it proved necessary to collect signatures for the abolition of article 301 he would do it again; all this is recorded in the court minutes.

The counsel for the defense, Fethiye ÇETİN, provided the example of decree number 2006/49047 of the Office of the Prosecutor of Şişli, in which it was stated that there was no need to prosecute Taner AKÇAN [AKÇAM], even though he had said similar things; she said that being a newspaper journalist was a profession, and according to the requirements of said profession and within the scope of press freedom, the abovementioned news had been made into a news item and this could not be considered a crime; she reminded the court that in their written request they, the attorneys, had stated the fact that penal proceedings on this account were a serious and unjust breach of freedom of expression and that the trial was not in accordance with the requirements of a democratic society, since the quest for historical truth was part of the freedom of expression, and that whatever you called the events of 1915 and whatever the number of those who died, clearly great pain was inflicted and many people lost their homes and country; she added the observations that the conviction of Hrant Dink for what he had said had presented him to society as the enemy, turning him into a target and constituting an important milestone on the road that unfortunately led to his death. Finally she stated that this effect of the conviction and even of the initiation of legal proceedings was not to be neglected.

During the court session on 14th June 2007, attorney Yücel Sayman stated that when the defendant said the events that occurred were a genocide, he did not refer to a nation but to events of the past, and when he had asked why we should feel insulted he had not meant the Turks, and because of all of this no crime had been committed. He also stated on the occasion of the court session on 18th July 2007 that no penal legal proceedings had been initiated on the basis of article 159 of law number 765 (Turkish Penal Code), that there were different claims and versions concerning what happened in 1915, with some claiming that the atrocities had been carried out by Kurds and others claiming that it had actually been Armenian gangs, because of which no crime had been committed.

During the court session on 14th June 2007, attorney Engin Cinmen stated that according to article 90 of the Constitution, the sentences of the European Court of Human Rights were binding also from the point of view of Turkish national law, because of which a judgment of innocence was required. During the court session on 18th July 2007, he said that if events prior to the foundation of the State of the Republic of Turkey were to be made the subject of article 301 of the Turkish Penal Code, then a great confusion would appear, since courts were not to be expected to carry out historical or sociological research. He added the statement that if a judgment other than acquittal were to be issued as a result of this trial, the 2nd Penal Court of First Instance for the District of Şişli would assume the nature of a court dedicated to trying Hrant Dink and family, and the sentence would be an infringement of the European Human Rights Convention.

During the court session on 14th June 2007, lawyer Erdal Doğan stated that the courts, which accepted this kind of indictment not in accordance with legal principles were also at fault, since such arbitrary and irregular trials, where the individual crimes were not indicated, should not be accepted. During the court session on 18th July 2007, he said that the defendant Hrant Dink and the defense lawyers were attacked in a lynch-like situation and were insulted on many other occasions during other phases of the legal proceedings, and what is even more serious, certain individuals or organizations killed Hrant Dink on 19th January 2007 on the basis of this sentence. The lawyer requested that the danger of certain individuals abusing the sentence to put together new organizations and to create social confusion be taken into consideration, and stated the fact that historical debates could not be frozen with a court order.
THE ACCUSATION OF INSULT BASED ON HISTORY, AND ITS EFFECTS,

The term “genocide” in the incriminated article pertains to history, philosophy, sociology and the right to life of the members of a given society, because of its cause and effects, and since the accusation of genocide is one of the gravest that can be directed at a society according to international law, and as such, since the perpetrators and the victims have been indicated, it is a hostile insult that is included within the scope of article 301/1 of the Turkish Penal Code and is the subject of the ongoing trial.

The publication in Turkey of the article that consisted of a confirmation of claims according to which genocide occurred in Turkey, offends Turkish citizens of Armenian and Turkish origin, who live side by side in a simple and modest way. It has an adverse effect on the psychological state of mind of the Turkish people, and it is a source of social restlessness in Turkey. As a result of having sacrificed many people to terrorism for years, the psychological state of mind of the Turkish people has become such that everybody is extremely sensitive and vulnerable and can be quickly pushed into taking justice into their own hands or otherwise be carried away by emotion. The said article creates the danger of actual threats to the Turkish public order. Horrible events have happened as a result of this kind of claim being presented without the necessary scholarly research being done beforehand. Talk about genocide, both in Turkey and in other countries, is unfavorably affecting national security and the national interest. In the past, during thirty-three separate acts of terrorism, hundreds of people who had committed no crime other than happening to be working at an embassy of the Republic of Turkey were killed by the ASALA terror organization, the aim of which was to have genocide claims recognized. Most of the perpetrators of these acts were not caught. What is more, the same terror organization attacked civilians at the Ankara Esenboğa airport on 7th August 1982 with bombs and heavy weapons, as a result of which 8 people, of whom two were foreigners, were killed, and 72 were wounded. In addition to this, in Turkey, professors, writers, upper-level intelligence officers, military officials who were defending the accomplishments of the republic, and forty thousand people have been killed by terror acts, the perpetrators of which were in some cases known, and in others not known. Most certainly there have been cases in every state’s history when there have been spying activities against other states; or potentially amicable elites in other countries have been supported and promised good lives in other countries or their own country; or of attempts to have public opinion get used to certain ideas or to think according to this country’s aims (except those who already thought differently or were acting as legal defenders); or of support for opposing parties. However, during the last century, influencing the actions of other countries through terrorism has become a traditional method used both by opposition groups and by countries. It is a known fact that among the members of the PKK terror organization there are Armenians of Syrian citizenship.

--Article 301 of the Turkish Penal Code concerns insults directed at Turkishness, the Republic, and the Institutions and Branches of the State. The concept of Turkishness includes the common culture of Turks, wherever in the world they may be residing. This culture includes also other societies participating in the same culture, even though they may be living outside Turkey. In other words, the concept of Turkishness expresses a common unifying cultural value, on which the Republic of Turkey rests. It is the foundation stone of the state. Since the basic philosophy of the Republic of Turkey is determined by Kemalist thought, this value has to be interpreted according to Atatürk’s ideas and according to the principles at the beginning of the Turkish constitution.

The concept of Turkishness is not based on racial superiority. It does not follow a racist approach, according to which there is a pure race. According to article 88 of the old Turkish Constitution of 1924, the Turkish population is defined as being Turkish, irrespective of race and religion. According to the definition provided by Mustafa Kemal in 1931, in a book of Civil Knowledge, the Turkish population who founded the Republic of Turkey is defined as the Turkish Nation. (Afet İnan, Medeni Bilgiler ve Atatürk'ün El Yazıları, Atatürk Araştırma Merkezi Yayını, 2000 p. 28) This approach does not aim for a voluntary assimilation, because according to Atatürk’s principle of populism, the presence of various populations in the country is a source of cultural wealth. With article 66 of the Constitution of 1982, the principle that everybody who is a citizen of the Turkish Republic is to be considered a Turk, irrespective of ethnic origin, religion or sect, was introduced.

The principle in article 301 of the Turkish Penal Code does not imply any kind of superiority in comparison to the values of other nations. According to article 341 of the Turkish Penal Code, insults directed at similar values of other countries are also considered as being crimes. Article 301 of the Turkish Penal Code aims to preserve the same legal usefulness as article 304 of the Turkish Penal Code.

--According to article 90/1 of the German Penal Code, a person who insults or vilifies the Federal Republic of Germany or one of the states or the constitutional order publicly and with evil intention in a meeting or by distributing an article, will be punished with a sentence of up to three years or a fine.

According to article 90/3 of the same code, if the perpetrator of said act makes an effort to apply what he stated, his sentence may be increased to up to five years’ detention.

--Article 116 of the Austrian Penal Code defines the public vilification of Constitutional Organs, the army or of a public institution as being a crime. Article 111 of the same code defines insult as a crime, while article 115 defines the insulting of the National Council, of the Federal Council, of Federal Parliament, of the Federal Army, of an independent section of the Federal Army or of a public institution as a crime.

--Article 296 of the Swedish Penal Code defines the vilification of a foreign country as being a crime, while article 297 extends this definition to the vilification of international organizations.