Freedom of expression and challenges posed by article 301 within Turkish context

Abstract

Background: Pointing out the freedom of expression as essential component of the pluralist, tolerant and genuine society, the study analyzes its philosophical ground and justifications for its restrictions as an unlimited freedom as well. The sine qua non character of freedom of expression, illustrated by starting its definition as a notion is examined in particular European Court of Human Rights showing that Article 10 of the Convention that protects this right, is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend even basic values of a democratic society. Results: Setting the theoretical framework of the freedom of expression with examples from European case law, right to critics is examined focusing specific case of Article 301 of Turkish Penal Code. First, the inclusiveness of freedom of expression especially criticisms for a progressive in a democratic society is summarized illustrating shortcomings resulted by the highly controversial article. Secondly, with a comparative analysis of different voices both inside and outside Turkey, results indicates the necessity of a comprehensive approach in order to meet the requirements of pressing social need and proportionality of legitimate aim pursued for proper justification of restrictions. Conclusions: A practical analysis of the extent of freedom of expression and its derogations in case of article 301 of Turkey, backed by political, historical and social analysis of the specific context, insufficient justification of its restrictions play significant role in promulgation of challenges, divisions and social affiliations illustrate that a comprehensive vista both inside and outside, past and future is crucial.