COURT DROPS PAMUK CASE

C O N F I D E N T I A L SECTION 01 OF 02 ANKARA 000262

SIPDIS

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 01/23/2016
TAGS: PGOV PREL PHUM OSCE TU
SUBJECT: COURT DROPS PAMUK CASE

REF: A. 05 ISTANBUL 2134


B. 05 ANKARA 7676

C. 05 ANKARA 7242

D. 05 ANKARA 7219

E. 05 ISTANBUL 2020

F. 05 ANKARA 6930

G. 05 ANKARA 6229

H. 05 ISTANBUL 1780

Classified by DCM Nancy McEldowney; reasons 1.4 b and d.


1. (U) Summary/Comment: An Istanbul court has dropped the
case against Turkish novelist Orhan Pamuk. The court did so
on a technicality after Justice Minister Cicek declined to
either grant or deny permission to proceed with the trial.
While this is good news, attorney contacts believe the
decision likely will not have a broader impact on freedom of
expression in Turkey.


2. (C) It is good that the Pamuk case is gone, as it had
become an Achilles heel for Turkey. This provides an
opportunity to modestly welcome the outcome and encourage
more progress. EU Enlargement Commissioner Rehn did this on
January 23 when he released a statement calling the court's
decision "good news," while also noting that others face
similar charges for controversial speech. At the same time,
however, Rehn told a group of journalists at a private dinner
January 20 that the Pamuk case had done as much harm to
Turkey's image as the movie Midnight Express did in the 1970s
and 80s, a point made publicly several weeks ago by FM Gul.
This is one case, under the old Penal Code. More progress is
needed, both in the law and in the way government officials
deal publicly with such cases.


3. (C) GOT officials often maintain that they cannot respond
to these types of prosecutions because the judiciary is
independent and to do so would constitute interference. In
this case, however, Cicek had the authority and the
obligation to make a clear decision. He declined to do so.
Instead, Cicek prolonged an embarrassment that has
highlighted Turkey's shortcomings in the area of freedom of
expression and undermined the country's image in the EU, and
his actions appear to have gone unchecked by PM Erdogan and
FM Gul. End Summary/Comment.


4. (U) An Istanbul prosecutor in September charged Pamuk with
"insulting Turkish identity" in an interview with a Swiss
magazine during which Pamuk said that 30,000 Kurds and 1
million Armenians had been killed in Turkey. At the opening
hearing of his trial December 16 (reftel A),the court
postponed proceedings pending a decision by the Ministry of
Justice (MOJ) on whether the trial could take place. Under
the Penal Code effective at the time Pamuk made his comments,
MOJ approval was required before courts could prosecute such
cases. This is no longer true under the new Penal Code,
which went into effect in June 2005. However, under Turkish
law, legal amendments cannot be applied retroactively if they
are prejudicial to a defendant. The Istanbul court,
therefore, determined that it needed MOJ approval to proceed.


5. (U) The High Court of Appeals appeared to support the
Istanbul court's position in late December when it ruled in
an unrelated case that a trial on similar speech-related
charges dating to the old Penal Code could not proceed
without MOJ approval. Cicek, too, appeared to have accepted
his responsibility when, shortly before Pamuk's December 16
hearing, he stated that he would make a clear decision,
either granting or denying permission to proceed with the
Pamuk trial. In the event, however, Cicek skirted the issue,
claiming that MOJ had no role in the case. According to the
MOJ, the relevant legislation is not the Penal Code but the
Criminal Procedure Code, which does not require MOJ approval
for prosecutions. The Istanbul court determined that it
could not proceed without MOJ approval.


6. (C) Attorney contacts told us the ruling addresses a
technicality that does not have broader implications for
freedom of expression in Turkey. Sezgin Tanrikulu, chairman
of the Diyarbakir Bar Association, noted that the Istanbul
court requested MOJ permission for the case back in May 2005.

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He said Cicek should have made his decision long before the
trial's first session in December. Yusuf Alatas, attorney
and president of the Human Rights Association, averred that
under the law, Cicek should have made a decision either
granting or denying permission for the trial. Nevertheless,
he said, the Istanbul court has no authority to challenge
Cicek's position, and was therefore required to drop the
case. Alatas said this will set a precedent only for similar
speech cases opened under the old Penal Code -- i.e., Cicek
is likely to decline to authorize similar prosecutions under
the old code, causing them to be dropped. It will have no
effect on newer cases opened under the current Penal Code,
including those involving the code's controversial Article

301. (Note: Under the new Penal Code, MOJ permission is not
required to prosecute under Article 301. End note.)






WILSON