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Top court quashes acquittal of Kaboğlu, Oran

Monday 17 September 2007, by Emine Kart

The Supreme Court of Appeals on Thursday quashed an earlier decision by a local court in Ankara which acquitted two prominent academics last year over a government-sponsored report criticizing the treatment of minority groups.

The decision concerning İbrahim Kaboğlu, a professor of law, and Baskın Oran, a professor of international relations, was made with a majority vote by members of the top court, the Anatolia news agency reported. Oran called the decision by the court “basically a contradiction,” especially at a time when public opinion has been heatedly debating how to create a civilian constitution, and called on the government to abolish certain articles of the penal code before drafting an appropriately democratic constitution. The judicial process concerning the two, which has been closely followed and which was regarded as a case of freedom of expression by the European Union, stemmed from a report released in the fall of 2004 by the Prime Ministry Human Rights Advisory Council (İHDK).

The then-head of the board, Kaboğlu, as well as former sub-commission chairman Oran resigned from the board in early 2005, amid heavy and public criticism from those among his former colleagues angered by the report.

Kaboğlu and Oran were both charged with “inciting people to hatred” and “openly belittling judicial organs” due to passages in the report. They were found not guilty on the first charge in May 2006, with the court dropping charges over insulting “Turkishness” under the notorious Article 301 due to the Justice Ministry’s failure to approve the case.

The word “Turkish nation” used in the Constitution is not meant to be used ethnically, the top court said, and suggested that the report titled “Minorities and Cultural Rights” exceeded the limits of freedom of expression via discussing supra and sub-identities. It then quashed the acquittal decision on the merits of the case. “The report amounted to the dimensions of a danger to society with its content, which has accusatory characteristics and has been announced to the public,” the court said.

The responsibility of freedom is not a responsibility that could be used haphazardly, the Supreme Court of Appeals said when it overturned Kaboğlu and Oran’s acquittals. The state can limit freedom of expression in democratic regimes by relying upon objective measures and reasons, it said, maintaining that the banning of statements that blemish national security and constitute “a clear and present danger” is a universal rule.

“The decision comes at a time when discussions are being held on writing a new civilian constitution. The definition of citizenship planned to be included in the new constitution is totally in line with what we had offered in that report, saying that ‘Turkishness’ should not be a part of that definition,” Oran told Today’s Zaman following Anatolia’s report.

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Source : 14.09.2007 ANKARA TZ

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