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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. 
 
---------------------------- 
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