Turkey's Court of Cassation, also called Supreme Court of Appeals of Turkey, has recently upheld the 13-and-a-half-month prison sentence imposed by a local court on the prominent Armenian writer Sevan NiÅanyan for his "offensive" statements about Islam's prophet Muhammad, the Turkish news website Diken reported.
According to the Turkish criminal code, for one to be legally given a sentence for "publicly degrading religious values", one's act should be deemed by a court "capable of disturbing public peace". In its ruling, the Court stated:
"These are not crimes of harm. These are crimes of danger. Hence, the possibility of public peace to be disrupted is enough for the defendant's act to constitute a crime. There is no need for a clear and competent danger for the public peace to be disrupted."
The Supreme Court of Appeals added that the conviction given to NiÅanyan for "degrading the religious values of a section of the public" was in accordance with the law:
"The defendant publicly used words about the Prophet of Islam, Muhammed, [pbuh] that degraded his dignity [in the eyes of] the religious community and that could lead to public indignation. Through these statements, the defendant aimed to discredit the Prophet Muhammad (pbuh) and used his statements to turn Islam's prophet into a person that is no longer respected and admired. This situation has provoked justified anger in the believers of Islam.
"As a matter of fact, anger against the defendant has occurred in the public and in media outlets as was manifested by many people who expressed their anger against the defendant on his blog website. According to the ECHR [European Court of Human Rights], when it comes to religious views and beliefs, it is necessary to avoid statements that do not contribute to public debate and that some can see as a cheap attack."
That is, NiÅanyan's prison sentence has been upheld not because he has committed a violent crime or incited people to violence, but because he supposedly "created a possibility of public peace being breached".
One member of the Court of Cassation, however, opposed the upholding of the prison sentence, saying, in part:
"To interpret discussing a subject in the media as 'disrupting the peace of the public' means criminalizing every discussion that enables the public to get informed and progress.
"There has been no unrest or indignation within the society and no concrete phenomenon that breaches the peace of the public [due to NiÅanyan's writings].
"The defendant publicly humiliated the religious values of the people in his writings on his social media website and these writings did not remain within the context of freedom of expression. However, these writings are not eligible to disrupt the public peace and there is no objective condition for punishment. Hence, it is not legally possible to punish the defendant according to the relevant legal regulation."
NiÅanyan is a public intellectual from Turkey's Armenian minority who is well-known for his writings on various issues such as history, linguistics, religion and politics.
His "crime"? In a piece he published on his own blog website on September 29, 2012, he wrote, in part:
"Mocking an Arab leader -- who claimed that he contacted God hundreds of years ago and who gained political, financial and sexual profit from this -- is not a hate crime. Almost at the level of kindergarten, it is a test case of the thing called 'freedom of expression'."
For these words, NiÅanyan was charged under Article 216/3 of the Turkish Penal Code. In 2013, an Istanbul court found him guilty and he was sentenced to 13-and-a-half-month in prison for religious defamation.
Turkish authorities also used NiÅanyan's construction work in Turkey as an "excuse" to go after him for supposedly non-political reasons. For it might have been too "costly" for Turkey, a candidate for European Union (EU) membership, to imprison yet another -- and this time, an Armenian -- intellectual solely for his religious or political views. Instead, NiÅanyan was handed a cumulative jail sentence of 17 years mostly over charges of illegal construction and arrested in 2014.
"NiÅanyan," human rights lawyer, Orhan Kemal Cengiz wrote in 2014, "is being punished for doing illegal construction on his land in Turkey, which is a haven for illegal construction, and is now incarcerated at Izmir-Torbali prison. Moreover, instead of being awarded a Nobel Prize for architecture for what he has created in Shirince, he faces about 50 years in prison terms for 17 cases brought against him. In fact, everybody knows that the case against NiÅanyan has nothing to do with construction infractions. He is being punished for his history and literary work challenging the official ideology."
In line with this assessment, Pen International reported in 2015:
"One of the biggest controversies in which NiÅanyan has been involved relates to a blog post he made in September 2012. Writing in his personal blog, NiÅanyan criticised the government's call to introduce a new 'hate speech' bill in response to the release of the film The Innocence of Muslims. The film led to widespread protests around the world as a result of its unflattering depiction of the prophet Muhammad. Writing in defence of the right to freedom of expression, NiÅanyan criticised the government's attempts to prohibit criticism of the historical Muhammad."
The same report included an interview that NiÅanyan gave to Pen International -- while he was still in prison for a year. He said, in part:
"The blog piece for which I was prosecuted and convicted argued simply that disrespectful speech about an ancient Arab leader -- implying the prophet of Islam -- was a matter of free speech that should be under the protection of law. It employed mildly disrespectful language about the prophet to illustrate the point.
"As a result I was attacked in vile language by a government minister, a top aide to the then prime minister, and the top religious official of the country; several newspapers launched a lynching campaign; I received hundreds of death threats; I was prosecuted in about a dozen courts around the country; and I was sentenced to 15.5 months in jail for blasphemy.
"I believe this country, as well as the world at large, urgently needs a serious debate about the role of Islam in modern society. But that debate is impossible if every phrase that is contrary to the beliefs, prejudices, habits or sensitivities of the self-appointed spokesmen of Islam is going to be banned or prosecuted or greeted with paroxysms of rage."
It is true. The debate is impossible in Muslim countries like Turkey -- in July of 2017, NiÅanyan finally escaped from prison and arrived in Greece, where he was granted asylum. To this day, he continues writing and speaking about Turkey and international issues.
But in Europe too, it is getting increasingly difficult to engage in free debate. Islam's blasphemy laws appear to haunt the European Court of Human Rights (ECHR) in Strasbourg, France, as well. In March of 2019, for instance, a conviction against an Austrian woman, Elisabeth Sabaditsch-Wolff, was upheld by the ECHR for having noted to a small private group that Mohammad married Aisha when she was six years old (Sahih-Bukhari, Vol. 5, Book 58, Nos. 234--236), although waited until she was 9 years old to consummate the marriage.
Sadly, a major problem that suffocates free speech is that the violent silencing of critics is sanctioned by Islamic scriptures. According to the Quran and the recorded sayings (hadith) and biographies (sira) of Islam's founder, "To leave Islam, to insult Muhammad or Allah, to deny the existence of Allah, to be sarcastic about Allah's name, to deny any verse of the Quran" or to commit other acts of blasphemy are all punishable by death. Apparently, the "moderate" version of this Islamic law is not to immediately murder, but to arrest the critics of Islam.
Islamic scriptures' intolerant stance on free expression and criticism is clear. But Turkey is not ruled according to Islamic Sharia law. Neither is the ECHR. Or are they?
Uzay Bulut is a Turkish journalist and political analyst formerly based in Ankara.