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Cablegate: Rogue Lawyer Strikes Again; Parliament May Take

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C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 004456

SIPDIS

SIPDIS

E.O. 12958: DECL: 08/03/2021
TAGS: PGOV PREL PHUM TU
SUBJECT: ROGUE LAWYER STRIKES AGAIN; PARLIAMENT MAY TAKE
ACTION TO REVISE ARTICLE 301

REF: A. 05 ISTANBUL 1780
B. 05 ISTANBUL 2058
C. ISTANBUL 172
D. ANKARA 3714
E. ANKARA 3985

Classified By: Political Counselor Janice G. Weiner for Reasons 1.4
(b, d)

This is a joint Consulate Istanbul/Embassy Ankara report.

1. (SBU) Summary: Novelist Elif Safak has been charged with
"insulting Turkish identity" under Article 301 of the Turkish
Penal Code. Safak was charged as a result of a criminal
complaint filed by ultranationalist lawyer Kemal Kerincsiz.
Kerincsiz has exploited Article 301, which targets those who
insult Turkish identity or the Turkish Republic, to harass
countless writers and academics. The GOT has asked for
patience to permit appropriate jurisprudence concerning
Article 301 to develop. However, Kerincsiz,s complaints may
well force the GOT to confront amending the article head-on
before October, when the EU, already highly critical of the
law, publishes its progress report on Turkey. End Summary.

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----------------------------
The Latest Case: Elif Safak
----------------------------

2. (SBU) Elif Safak, a writer and assistant professor at the
University of Arizona (and 7 months pregnant), has been
charged with two counts of insulting the Turkish identity
under Turkish Penal Code (TPC) Article 301. In her novel
published in Turkish in March as "Baba ve Pic" (The Father
and the Bastard), characters discuss the Armenian genocide.
Kemal Kerincsiz, a lawyer from the ultranationalist Grand
Lawyers, Association, filed a complaint in June with
Istanbul's Beyoglu District Court, claiming that the book
violated Article 301 and insulted Turkish identity. Although
the initial investigation concluded that there was no basis
for charges, Kerincsiz appealed and a higher court ordered
the prosecutor to indict Safak, her translator, and the
publisher. No court date has been set, but Safak told us
that she believes the court case will be heard after the
August judicial recess. Safak is due to deliver her baby in
late September and her attorney believes this will help her
case. Safak faces six months to three years in jail if
convicted.

---------------------------------------------
Rogue Lawyer Kerincsiz Uses Article 301 Again
---------------------------------------------

3. (U) Article 301 states that "a person who explicitly
insults being a Turk, the Republic, or Turkish Grand National
Assembly, shall be imposed a penalty of imprisonment for a
term of six months to three years." It is the new version of
Article 312 under the old TPC. The new TPC went into effect
in June 2005. According to news reports, at least 60 writers
and journalists have been charged under Article 301,
including Hrant Dink, editor of the Armenian newspaper Agos,
who was convicted and given a 6-month suspended sentence (Ref
A). The number of those who have had investigations opened
and closed without charges is unknown.

4. (U) Kerincsiz and his ultranationalist, right-wing
organization are anti-EU, anti-NATO, and anti-U.S. We
requested a meeting with Kerincsiz, who declined, arguing
that it would be inappropriate for a member of his
organization to meet with "an agent of a foreign power." He
later published his rejection of the meeting request in the
MHP publication "Yeni Cag." Kerincsiz is a 46-year old
attorney who first entered the limelight when he began filing
cases soon after the passage of Article 301. Once a case is
filed, prosecutors are obligated to conduct a preliminary
investigation before deciding whether further to pursue a
case. A sampling of other Kerincsiz-brought cases includes:

-- a complaint against a conference on Armenia at Istanbul's
Bogazici University in September 2005. The Istanbul
Administrative Court decided order the cancellation of the

ANKARA 00004456 002 OF 002


conference in a controversial two-to-one decision. A
regional administrative court later annulled the lower court
decision on jurisdictional grounds (Ref B);

-- a complaint filed in December 2005 against five
journalists who had criticized the court decision to cancel
the Armenia conference. The court later dropped the charges
(Ref C);

-- a complaint filed in June 2006 against the Armenian
Patriarch Karekin II for "insulting Turkishness" by alleging
that Turks committed genocide. A prosecutor is currently
investigating the complaint; and

-- a complaint filed in June 2006 against the Ecumenical
Patriarch Bartholomew I and other Greek Orthodox clergy for
conducting a religious service in clerical robes. A
prosecutor is investigating the complaint (Ref D).

------------------------------------------
Government May Finally Need to Take Action
------------------------------------------

5. (C) The GOT had earlier asked for patience and hoped that
jurisprudence would be developed to remove the ambiguities in
the law and its implementation. As AKP Vice Chairman and MP
Dengir Mir Mehmet Firat explained to us, the introduction of
the new TPC had wiped the jurisprudence slate clean -- they
were starting from scratch. The legislators had done their
work; now it was up to the courts. While he personally had
objected to the wording of Article 301, the Court of Appeals
needed to have its say; jurisprudence should resolve the
issue.

6. (C) However, Kerincsiz,s propensity for filing suits
under Article 301 could make this solution untenable. Human
Rights Association Director General Yusuf Alatas told us
government sources indicated to him that they would like to
address Article 301 in the near-term but wanted to wait for a
groundswell of popular support from NGOs and intellectuals
first. PM Advisor Nabi Avci told us that amending Article
301 was indeed a possibility, in the context of convening the
Turkish parliament early for an extraordinary session in
September to address items from the Ninth Reform Package (Ref
E).

-------
Comment
-------

7. (C) The EU has also expressed its displeasure with Article
301 and its consequences. With an EU progress report
expected October 24, the GOT may have to move quickly and
decisively to amend (more likely) or remove (altogether less
likely) Article 301.

Visit Ankara's Classified Web Site at
http://www.state.sgov.gov/p/eur/ankara/

MCELDOWNEY

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