BASKAYA v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23536/94

                      by Fikret BASKAYA

                      against Turkey

     The European Commission of Human Rights sitting in private on

2 September 1996, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGO

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 22 February 1994

by Mr. Fikret Baskaya against Turkey and registered on 25 February 1994

under file No. 23536/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the Commission's decision of 20 February 1995 to communicate the

     application ;

-    the observations submitted by the respondent Government on 7

     August 1995 and the observations in reply submitted by the

     applicant on 2 October 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, a Turkish citizen born in 1940, is a professor of

economics and a journalist. Before the Commission, he is represented

by Tekin Akillioglu, a lawyer practising in Ankara.

A.   Particular circumstances of the case

     The facts of the present case as submitted by the parties may be

summarised as follows:

     In April 1991 the applicant's book entitled "Batililasma,

Çagdaslasma, Kalkinma - Paradigmanin iflasi (Westernization,

Modernisation, Development - the collapse of a Paradigm)" was published

by his publisher. The book was an academic examination of the socio-

economic evolution of Turkey since the 1920s. It analysed and

criticised the "official ideology" of the State.

     On 2 August 1991 the Public Prosecutor at the Istanbul State

Security Court issued an indictment and charged the applicant, under

Article 8 paragraph 1 of the Anti-Terror Law, with disseminating

propaganda in his book against the indivisibility of the State. The

Public Prosecutor quoted in his indictment certain extracts from a

single chapter of the book in which the applicant had referred to "the

Kurdish problem".

      In the proceedings before the Istanbul State Security Court, the

applicant denied the charges and requested his acquittal. In a written

statement to the Court, he submitted that the book was an academic work

which could not be deemed as propaganda. He asserted that nobody had

the right to try and convict a person for the expression of an opinion.

He stated that a professor, whose duty was to conduct research and

publish his conclusions, could not be forced to accept the "official

reality". He maintained that his book might be judged by academics, but

not by the Court.

     In a final opinion dated 18 March 1992, the Public Prosecutor

requested the conviction of the applicant under Article 8 paragraph 1

of the Anti-Terror Law and the seizure of all copies of the book.

     On 14 October 1992 the Court acquitted the applicant. It held

that the book as a whole was an academic work with no elements of

propaganda.

     The Prosecutor appealed. He submitted that the book had alleged

that a certain part of the Turkish territory belonged to "Kurdistan"

which the Turks had annexed and colonised. Concluding that the

applicant, by using such expressions, had disseminated propaganda

against the indivisibility of the State, he requested that the verdict

be set aside.

     On 4 February 1993 the Court of Cassation quashed the decision

of the trial court and referred the case back for retrial.

     In a judgment dated 5 August 1993, the Istanbul State Security

Court found the applicant guilty. It first sentenced the applicant to

two years' imprisonment and a fine of 50,000,000 Turkish lira. The

Court, considering the good conduct of the applicant during the trial,

reduced his sentence to one year and eight months' imprisonment and a

fine of 41,666,666 Turkish lira. The Court, inter alia, relied on

extracts taken from  pages 51, 52 and 59 of the book. It concluded that

reference to a certain part of Turkish territory as "Kurdistan" and

assertions about its colonisation amounted to propaganda against the

indivisibility of the State.

     The applicant appealed. He stated that he could not be tried and

convicted under Article 8 of the Anti-Terror Law which contravened the

Turkish Constitution and the Convention. He, inter alia, reiterated the

defence he had made before the State Security Court. In a statement to

the Court of Cassation dated 15 December 1993, the applicant's legal

representatives asserted that the State Security Court had not

considered the book as a whole and erroneously based its decision on

an assessment of one chapter of the book. They maintained that in a

democratic society opinions had to be expressed without any

restriction.

     At the hearing before the Court of Cassation on 15 December 1993,

the applicant, in addition, referred to the lack of clarity of the

provisions of the Anti-Terror Law.

     In a decision of 16 December 1993 and pronounced on 22 December

1993, the Court of Cassation, upholding the cogency of the State

Security Court's assessment of evidence and its reasoning in rejecting

the applicant's defence, dismissed the appeal.

     The applicant served his sentence in prison and paid the fine.

Article 8 of the Anti-Terror Law was amended six months after his

release.

B.   Relevant domestic law

     Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991

     (before the amendments of 27 October 1995)

     "No one shall, by any means or with any intention or idea, make

     written and oral propaganda or hold assemblies, demonstrations

     or manifestations against the indivisible integrity of the State

     of the Turkish Republic with its land and nation. Those carrying

     out such an activity shall be sentenced to imprisonment between

     two and five years and to a fine of between 50 and 100 million

     Turkish lira.

COMPLAINTS

1.   The applicant complains under Articles 9 and 10 of the Convention

that his conviction for writing an academic book constituted an

unjustified interference with his freedom of thought and freedom of

expression, and in particular with his right to receive and impart

information and ideas.

2.   The applicant complains under Articles 6 para. 2 and 7 para. 1

of the Convention that the text of Article 8 of the Anti-Terror Law was

so unclear and the concept of "dissemination of propaganda against the

indivisibility of the State with its land and nation" was so vague that

his conviction thereunder was not foreseeable. He also complains that

his conviction was based on legal principles which had not existed, or

at least had not been defined with sufficient clarity, at the time of

the commission of the offence.

3.   The applicant complains under Article 6 para. 1 of the Convention

that his case was not heard by an independent and impartial tribunal.

He asserts in this regard that one of the three members of the State

Security Court is a military judge answerable to his military superiors

whose presence prejudices the independence of the Court.

4.   The applicant lastly complains that he did not have a fair trial,

as guaranteed by Article 6 para. 1 of the Convention. He asserts that

the domestic courts failed to consider his book as a whole and

convicted him merely on an assessment of one chapter thereof.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 22 February 1994 and registered

on 25 February 1994.

     On 20 February 1995 the Commission decided to communicate the

application under Articles 10, 7 and 6 para. 1 of the Convention, to

the respondent Government, pursuant to Rule 48 para. 2 (b)  of the

Rules of Procedure.

     The Government's observations were submitted on 7 August 1995,

after an extension of the time-limit fixed for that purpose. The

applicant replied on 2 October 1995.

     On 4 December 1995 the Government submitted information

concerning the amendments made to the Anti-Terror Law (Law No. 3713)

and the developments in the cases of persons convicted and sentenced

under Article 8 of the said Law. The applicant submitted his comments

in reply on 5 February 1996.

THE LAW

1.   The applicant complains that his conviction for writing an

academic book constituted an unjustified interference with his freedom

of thought and freedom of expression, and in particular with his right

to receive and impart information and ideas. He also complains that his

conviction was based on legal principles which had not existed, or at

least had not been defined with sufficient clarity, at the time of the

commission of the offence. In this context he invokes Articles 7, 9 and

10 (Art. 7, 9, 10) of the Convention.

     Thus formulated, the applicant's complaint is in fact directed

against an alleged infringement of his freedom of expression. The

Commission has examined this complaint under Article 10 (Art. 10) of

the Convention which provides as follows:

     "1.   Everyone has the right to freedom of expression. This right

     shall include freedom to hold opinions and to receive and impart

     information and ideas without interference by public authority

     and regardless of frontiers. ...

     2.    The exercise of these freedoms, since it carries with it

     duties and responsibilities, may be subject to such formalities,

     conditions, restrictions or penalties as are prescribed by law

     and are necessary in a democratic society, in the interests of

     national security, territorial integrity or public safety, for

     the prevention of disorder or crime, for the protection of health

     or morals, for the protection of the reputation or rights of

     others, for preventing the disclosure of information received in

     confidence, or for maintaining the authority and impartiality of

     the judiciary."

     The applicant also complains on the basis of the same facts of

a breach of Article 7 (Art. 7) of the Convention.

     The Commission recalls that in the particular case of

restrictions on the freedom of expression taking the form of criminal

sanctions, Article 7 must be taken into account in addition to the more

general requirement of lawfulness laid down in Article 10 para. 2

(Art. 10-2) (No. 8710/79, Dec. 7.05.1982, D.R 28 p. 77).

     Therefore it has examined the complaint together with Article 7

(Art. 7) of the Convention which reads as follows:

     "1.   No one shall be held guilty of any criminal offence on

     account of any act or omission which did not constitute a

     criminal offence under national or international law at the time

     when it was committed. Nor shall a heavier penalty be imposed

     than the one that was applicable at the time the criminal offence

     was committed."

     The Government maintain that in this case the interference with

the applicant's rights under Article 10 (Art. 10) of the Convention was

prescribed by law i.e. by Article 8 of the Anti-Terror Law. They state

that the applicant in his book made a reference to a certain region of

Turkish territory as "Kurdistan", and asserted that "the Republic of

Turkey had colonised these territories". The Government assert that

according to Article 8 of the Anti-Terror Law these forms of expression

constitute propaganda against the indivisible integrity of the State.

They consider that the domestic courts therefore interpreted the law

reasonably.

     The Government also maintain that the purpose of the conviction

of the applicant was linked to the control of the terrorism carried out

by illegal organisations and consequently served to protect the

territorial integrity and national security.

     As to the necessity of the measure in a democratic society, the

respondent Government state that the threat posed to Turkey by the PKK

and its affiliations is internationally recognised, as is the need to

react firmly to it. Terrorism strikes at the heart of democracy, the

fundamental rights which are enshrined in that concept and the judicial

and political systems. They assert that the book in question is based

on propaganda against the indivisible integrity of the State. They

submit that it is generally accepted in comparative and international

law on terrorism, that restrictions on Convention rights will be deemed

necessary in a democratic society threatened by terrorist violence, as

being proportionate to the aim of protecting public order.

     In this respect the Government assert that the decisions of the

domestic courts did not exceed the margin of appreciation conferred on

States by the Convention.

     Accordingly the Government submit that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

     The applicant contests all these arguments. He maintains that

the text of Article 8 of the Anti-Terror Law was so unclear and the

concept of "dissemination of propaganda against the indivisibility of

the State with its land and nation" was so vague that his conviction

thereunder was not foreseeable. Therefore, he emphasises that the text

of the provision did not enable him to distinguish between permissible

and prohibited behaviour.

     The applicant also alleges that his conviction was not for any

legitimate purpose under the Convention. He states that he was

convicted because he had used certain expressions  such as "Kurdistan"

and had asserted the questionability of the "official reality" in his

book. The applicant considers that the views expressed by him were

within the limits of permissible criticism.

     Furthermore the applicant maintains that the penal sanctions

inflicted upon him were not necessary in a democratic society. He

explains in this connection that the book as a whole was an academic

work with no elements of propaganda.

     With regard to the amendments made by Law No. 4126 to Article 8

of the Anti-Terror Law, the applicant observes that they were made

after he had served his sentence and therefore did not apply in his

case.

     The Commission has conducted a preliminary examination of the

parties' arguments. It considers that this part of the application

raises complex factual and legal issues which cannot be resolved at

this stage of the examination of the application, but require an

examination of the merits. Consequently, this complaint cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

2.   The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not have a fair trial before an independent and

impartial tribunal.

     The Government maintain that State Security Courts, which are

special courts set up to deal with offences against the existence and

continuity of the State, are ordinary courts, given that they were

established in accordance with the provisions of Article 143 of the

Constitution. As they are independent judicial organs, no public

authority or agent could give instructions to such courts. State

Security Courts are composed of three members, one of whom is a

military judge. A civil judge acts as president and all judges have

attained the first grade in the career scale. The presence of a

military judge in the court does not prejudice its independence, this

judge being a judge by career and not belonging to the military. The

judges of State Security Courts evaluate the evidence and take their

decisions in accordance with the law and on their own conscientious

conviction as required by Article 138 of the Turkish Constitution. The

verdicts of such courts are subject to review by the Court of

Cassation.

     Accordingly the Government submit that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

     The applicant states that one of the three members of the State

Security Court is a military judge answerable to his military superiors

whose presence prejudices the independence of the Court.

     The Commission has conducted a preliminary examination of the

parties' arguments. It considers that this part of the application

raises complex factual and legal issues which cannot be resolved at

this stage of the examination of the application, but require an

examination of the merits. Consequently, this complaint cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

     merits of the case.

        H.C. KRÜGER                        S. TRECHSEL

         Secretary                          President

     to the Commission                    of the Commission

ANNEX TO THE DECISION ON THE ADMISSIBILITY

OF APPLICATION NO. 23536/94 v. TURKEY

EXTRACTS FROM THE IMPUGNED TEXTS CONSTITUTING THE GROUNDS FOR THE

DOMESTIC COURT RULINGS

THE QUESTION OF

THE "NATIONAL CHARACTER" OF THE NATIONAL STRUGGLE

"A nation oppressing another cannot be free"

K. Marx

     The Kurdish question occupies an important place in the analysis

of the National Struggle and of the evolution of the Turkish social

formation. Although extremely important, the Kurdish question and the

process of colonization of Kurdistan are the subject of another book.

Furthermore, the question is not exclusively related to Turkey. It

constitutes a genuine knot both in the making of domestic policies (the

form of political regimes) of four states (Turkey, Iran, Iraq and

Syria) in the region and the shaping of their relations with

imperialism as well as in the "specific" character the relationship

between these four neighbouring states has acquired.

     It is mainly for two reasons that we intend to discuss this

question, even though to a limited extent, within the plan and scope

of this book: To reveal the irrationality of the official ideology and

the real nature of the National Struggle. In other words, whether the

so-called "War of Liberation" was a true "Movement of Liberation" will

be put to debate. The confinement of Kurdistan within the limits of

four separate states (ignoring the small area within the Soviet Union)

certainly gives the imperialists an easy "control" over these four

states. Although the Kurdish question bears great importance also in

the maintenance of the imperialist status quo in the region, we will

not offer here an analysis of this aspect of the question.

     Those scholars, writers and thinkers who are geared to the

production of the official ideology, or those who refrain from

contradicting it, have taken pains to avoid the question. A handful of

scholars who attempted to take up and discuss this question

scientifically have been punished severely. They know that "to reveal

shame is even a greater shame"! Here the character of the relationship

between science and the dominant ideology is revealed once again. This

is just like what Napoleon said to university rectors in one of his

directives: "You will teach positive things suitable for the monarchy.

No metaphysics, no ideological chit-chat"...

     Yet, however hard they may have tried to ignore it, to forget it

and to leave it to oblivion, this phenomenon is quite visible even

within a totally distorted history. If one does not consider another

people to be worthy of what he considers his people (or himself) to be

worthy of, if one considers certain freedoms essential for himself but

not so for others, can he be really concerned with freedom?

     Every analysis of the evolution of Turkish social formation is

invariably doomed to remain impaired unless the Kurdish question is

incorporated in it. A sound analysis of the totality is impossible when

one of its integral parts is ignored. Any attempt to analyze a social

process by excluding one of its constituent elements will inevitably

undermine the scientificalness of that analysis. There exist so deep-

rooted double standards that some of the Turkish intellectuals "react"

to racist-fascist oppression in some far-off places in Africa, Asia or

Latin America but turn a blind eye to the tragedy a nation has been

going through right under their noses and are turned into fanatic

chauvinists when it comes to the Kurdish question; that they are

opposed to dictators except those in their past, and so on. The Turkish

intellectuals need certainly to do a self-questioning, and, in order

to do that, they need to get rid of the policeman in their minds, who

directs their thinking!

     On the other hand, the development of the Turkish fascist

movement owes much to the racist policy of denial pursued against the

Kurds since the foundation of the Republic. Paradoxically, the "denial"

of the presence of the Kurdish Nation is both the most important and

the weakest chain of the official ideology. A nation that exists cannot

be vanished by "cognitive negation" and the objective fact remains in

place regardless of people's fancies and deliria. Doubtless, this does

not mean that fancies, hypocrisy and deliria serve no purpose at all!

These have always produced profits for some, have enabled others to get

bureaucratic or academic careers and high salaries and have helped yet

others to rise in the political arena.

     In a book he wrote in the 1930s, which could have been published

as late as 1979 and was banned again after 1980, Hikmet Kivilcimli

wrote: "The purpose of Kemalism in Kurdistan, in terms of both

administration and culture, is to deny the existence of a Kurdish

People there and to annihilate and silence that existence in all of its

aspects. This is the aim of the administrative and cultural policy".

(1)

     The name of a region that was known as Kurdistan and referred to

so in all documents in the Ottoman times has changed (!) in the course

of time. The region was called "Vilayet-i Sarkiye" (Eastern Province)

till the 1950s. During that period the words "Kurd" and "Kurdistan"

were deleted from dictionaries. Heavy censoring and self-censoring

definitely prohibited the use of these concepts. An Ottoman-Turkish

dictionary published before 1950 had only one entry under the letter

K: "Kürdili Hicazkar". [The name of a makam in Turkish music -

Translator]. This should certainly remind the famous scholars of the

Turkish Language Society of something! In the Ansiklopedik Türkçe

Sözlük (Encyclopaedic Turkish Dictionary) published in 1971, in its

second volume containing K entries, the Kurds are defined as follows:

"Name of a community comprising mostly Turks who have acquired another

language, speak a distorted Persian and live in Turkey, Iraq and Iran,

and a member of that group". The region which had been called

"Vilayet-i Sarkiye" till 1950 came to be known as "Dogu" (the East)

between 1950 and 1960. When the "Planning Period" began in Turkey after

1960, the region was called "Areas with Priority in Development", which

was abbreviated as "K.Ö.Y." ["Village"] in "scholarly" publications.

By doing this the planners proved how "scientific" they were. Once they

called the region a "village", they were to be able to determine

"scientifically" how the relationship between the village and the city

should be. Nowadays the region has got a new name. It is called the

"Extraordinary State Region" ["State of Emergency Region -

Translator"]. The official ideology is so skillful! It seems to have

gradually imparted to the region an "extraordinary quality". As a

matter of fact the region has been an extraordinary one, has lived

through extraordinary events and has been oppressed extraordinarily

since the 1920s, with martial law being the rule except for a few

years. In the absence of martial law, a de facto martial law was in

effect.

following definition: "Kurd: An Aryan people. Kurdish: The language

spoken by the Kurds, which is a mongrelized version of Persian".

Resimli Ansiklopedik Büyük Sözlük [Great Pictorial Encyclopaedic

Dictionary] (1982) says: "Kurd: The name of an ethnic group scattered

among various Middle Eastern countries and a member of that group"...In

the 1980s the military junta chose to make new and original inventions.

The "White Book" which the General Staff published and distributed in

hundreds of thousand copies in the 1980s offers something interesting:

     "The upper part of the mountains, the hills, were covered with

     snow which never melted, be it summer or winter. In sunny days,

     a glass-like layer would top the snow. Above it would be hard,

     beneath it would be soft.

     When one walked on this snow, the place where he put his feet

     would depress, making sounds like "cart-curd". This was the

     reason the eastern Turkmens were called Kurds. What the

     separatists call Kurd is in fact the name of the sound heard when

     highlander Turks, those living in snowy places, walked on snow".

     (2)

     Having "effaced" Kurdistan from the world map, the official

history, or more broadly the official ideology, had to "vanish" the

nation inhabiting that place. A "remedy" was devised. The Kurds were

announced to be "mountain Turks". The Mountain Turks, although Turkish

by lineage, Turkish in essence, were different from the True Turks in

two respects. For one thing, they were mountain dwellers! And they had

forgotten Turkish as they lived in mountains! There must be an

interesting relationship between being a mountain dweller and

forgetting one's own language!

     What is strange is that these people who forgot their own

language while inhabiting mountains were able to learn another

language. This may allow one to conclude that it is easier to learn

another language than forget one's own! They ended up speaking "a

distorted Persian"... This logic certainly allows another conclusion:

those who forget their own language cannot learn another language

perfectly! One cannot help but ask the question why these people were

not able to acquire a distorted Spanish or Chinese instead of Persian!

     The denial of the existence of the Kurds does not only contradict

science but also fundamental human rights. It is said that the British

Parliament can do everything other than "making a woman out of a man

and vice versa" Similarly our official ideology considers a nation

nonexistent. Then it makes them forget their language and teaches them

a poor Persian!

     While the Ottoman Empire, which had been a party to the

imperialist war, was being dismantled and transformed into the Republic

of Turkey, it took part also in the process of partitioning of

Kurdistan and got a considerable share. In this respect, the National

Struggle marks the beginning of the subjugation of the Kurdish Nation

rather than being the liberation of a nation in the true sense. For the

Kurds, one aspect of the National Struggle represents the partitioning

of Kurdistan in agreement with the British. Had the National Struggle

really been a struggle for the liberation of a nation, then the Kurdish

Nation would not have been subjugated and there would not have been any

need for meaningless compulsion, fabricated justifications and lies in

this respect... Otherwise, it is impossible to understand why a nation

who fought for her freedom subjugated, banished and denied the cultural

identity of another nation. The liberation of a nation means that she

determines her own destiny. If the self-determination of a nation

deprives another nation of the same, then whether the former is a true

movement of liberation, a true struggle for freedom, is debatable...

     When one's liberation results in the subjugation and colonization

of another, this contradicts the concept of liberation. The liberation

of a nation from colonialism is a progressive movement. To quote F.

Engels "Freedom from national slavery is the basic condition for any

healthy and free development" (3) On the same subject Trotsky wrote:

"The dawning of national consciousness over an extremely suppressed

nationality, that nation's waving the flag of liberation not only

against political imperialism but also against cultural imperialism,

is an important initial step taken by that nation towards the

consciousness of her own human dignity and represents an immense

progress for humanity". (4)

     No doubt such a movement has no need to fabricate false

"theories". Similar compulsions are resorted to only where a true

freedom movement has not taken place and freedom has not been

achieved... An irrational ideology produced for the purpose of

maintaining exploitation and oppression can only be built on ignorance,

denial, lies and distortions. Once lies are told, they necessarily

produce other lies. An unending road is inevitably taken, in which lies

are told in order to hide previous lies.

     The methods considered valid and the language used have not

changed much throughout history. "The civilized man civilizing the

barbarian", "offering civilization to him", "the grafting of culture"

by "refined nations" among the "uncultivated", "helping them develop",

"the nobleness of the dominant nation and the roughness and ineptness

of the oppressed", "the God-given high abilities of the oppressor,

their aptitude for culture and civilization", "the incapability of the

oppressed, their inability to stand on their own feet", etc...

During the Agri revolt Yusuf Mazhar wrote:

     "Because, as demonstrated by history, these are more capable than

     the American Indians, but are far more bloodthirsty and

     cruel...They are deceitful and are totally devoid of certain

     feelings and civilized propensities. They have been a nuisance

     to our race for centuries.

     I think that it is not possible to break the dark spirit, the

     rough feelings and bloodthirsty tendencies among this Kurdish

     mass. Expecting that this will be achieved in the course of a

     long evolution will cause them to undertake revolts like this

     from time to time, to disturb peace in the country or to steal,

     occupying the government constantly... There are great

     differences between the northern and southern Kurds. We hope that

     our government, taking this point into consideration as well,

     will act in a definite and serious manner befitting (!) the motto

     of the Republic." (5)

Hikmet Kivilcimli comments on what Yusuf Mazhar wrote:

     "According to the ideology of the Kemalist bourgeoisie, 'the

     Kurds are incorrigible'. The saying that 'the Turkish nation is

     incorrigible' now fits the Kurds well. Given that they are

     incorrigible... the logical inference immediately follows. Just

     like the 'civilized' European Pirates and Pirate States, the holy

     and sacred Turkish capitalism which is 'not totally deprived of

     civilized propensities' has a historic mission to accomplish: To

     eradicate the Kurds who are 'far more bloodthirsty' than the red

     skins such as the Aztecs and the Incas whose names and traces

     have been wiped out of the Earth by the white Europeans!... That

     notorious policy of annihilation." (6)

     Colonial policy is characterized by the destruction of the true

history of the exploited peoples, denial of their historical past and

imposition on them a version of history chosen by the colonialist

nation. Therefore, whatever may exist to remind of the history of the

oppressed, exploited and subjugated people (collective memory) is

destroyed. It is absolutely necessary to remove the roots which hold

them upright. This is exactly what the Kemalists did... In the

libraries, everything relating to the Kurds and to their history was

destroyed... Historical buildings constructed under Kurdish

principalities were demolished and military barracks were built on

their sites. (Birca Belek - Alaca Burç). The names of all localities

were changed. (7)

     It is no surprise that all historical and sociological research

relating to the Kurds is banned in such an environment. While there are

departments of philology teaching dead languages, Kurdish, a living

language with millions of speakers, is not taught in any one of the

faculties of arts! Yet, their power to determine everything is

limited... There are institutes teaching Kurdish in many centres in the

West... and this irritates our rulers... Aren't the westerners doing

injustice by allowing institutes teaching a language deemed

nonexistent?

     In a period during which the entire population except 3 to 4 per

cent spoke no language other than Kurdish, the use of Kurdish was

banned (in non-official situations as well). There were officials

assigned with the duty of enforcing this prohibition in the urban

centres inhabited by Kurds. Those Kurdish peasants who arrived to sell

their inconsiderable surplus product were caught by "controllers".

According to what Erzincan Governor Ali Kemal wrote, speaking Kurdish

was fined at the rate of five kurushes a word. Given that in the 1930s

sheep were sold at 50 kurushes each, someone who expressed himself with

two Kurdish sentences of five words each had to pay a fine equal to the

price of one sheep... Since it was obligatory to use the services of

an interpreter for the sale, proceeds from the sale were lost as

penalty... (8)

Article 39 of the Lausanne Peace Treaty reads as follows:

     "The speaking of any language by any of the citizens of Turkey,

     be it in their private or business relations, or in relation to

     religion, the press and all sorts of publications, or at general

     meetings, shall not be made subject to any restrictions.

     "Although there is an official language, Turkish Citizens

     speaking a language other than Turkish shall be provided with

     appropriate conveniences to enable them to use their own language

     verbally before courts..."

     The existence of a distorted version of the National Struggle did

naturally lead to misinterpretations as well. In a work published in

1935, Nehru wrote: "Thus the Turks who had fought for their

independence not long ago oppressed the Kurds who demanded independence

for themselves. What is strange is the manner in which a defensive

nationalism has taken on an aggressive form and the freedom of one has

turned out to become subjugation of another. In 1929 the Kurds revolted

again. And that was suppressed at least temporarily. But how can one

oppress forever a people who insist on freedom and is prepared to pay

its price" (9) In writing these lines, Nehru wishes to see the National

Struggle as a rebellion against imperialism and colonialism. But that

is out of the question. This shows that minds are blurred by

attributions such as "anti-imperialism", "guiding the oppressed peoples

to liberation" or "the first national liberation movement in the

world". The development of Turkey's foreign policy demonstrates the

shallowness and meaninglessness of the foregoing claims. That the basic

preference underlying Turkey's foreign policy is in favour of the

colonialists-imperialists rather than the exploited peoples is also

closely related to the above fact. Otherwise, could a nation who really

fought for its freedom have subjugated another?

     Failing to form a sufficiently clear opinion of the National

Struggle, Hikmet Kivilcimli says: "Another point is that Turkey herself

has been the scene of one of the important national liberation

movements. But, being placed under the power and dictatorship of the

Kemalist bourgeoisie, this liberation movement could not be freed from

capitalistic contradictions and attributes. And that was impossible.

As pointed out above, Turkey did not fail to play the role of an

oppressive nation in her domestic relations, although she was an

oppressed nation in her foreign relations". (10) Where a nation who is

oppressed in foreign relations acts as an oppressor in her domestic

relations, it is difficult to justify this by capitalistic

contradictions alone. For one thing, contrary to what Kivilcimli wrote,

Turkey was not "the scene of one of the important national liberation

movements". As we attempted to show above, the National Struggle was

neither a national-popular nor an anti-imperialist movement. A state

which itself was a party to an imperialistic war could not become anti-

imperialist. What was done in fact was to play down the Anatolian

movement as a trump against imperialists. Had the group of states with

which the Ottomans allied themselves been victorious, the situation

would have become clearly visible, leaving no room for illusions. The

National Struggle's real aim was to sprout the seeds of capitalism

among the ruins of a collapsing empire. Therefore the transition from

the Empire to the Republic did not necessarily imply "being the scene

of one of the important national liberation movements".

     Arguments that the Turkish state cannot occupy a colonialist

position in its east, that Turkey is herself an underdeveloped country

and that a country oppressed by imperialism cannot pursue a colonialist

policy against another nation are widespread... This approach is

certainly the product of an illusion about the oppressor-oppressed and

the exploiter-exploited. A person's being oppressed does not prevent

him from oppressing another (even the poorest man can find someone to

oppress, can perfectly subjugate his wife and children), and the same

is all the more valid within the hierarchic capitalist world system.

Furthermore, the distinction between imperialism and colonialism should

not be overlooked. History offers abundant examples of those countries

who were exploited by imperialism, yet possessed many colonies. One

example is Portugal who possessed colonies in Africa until recently,

including Angola, Mozambique and Guinea-Bissau. Her position as a semi-

colony did not prevent Portugal from intervening in the destiny of

other nations. The state which was in a position to be placed on

bourgeois foundations upon the establishment of the Republic could be

colonialist by its nature.

     Turkey's occupying a "lower" place within the hierarchic

capitalist world system does not imply that she cannot subjugate

another nation. The same is true for Iraq which has subjected the Kurds

to genocide. Certainly for Iran as well... Indeed, having been divided

into four parts Kurdistan has the status of an international colony.

The place occupied by the colonialists within the capitalist world

system, their being "neo-colonies", or their being exploited by

imperialism, do not prevent them from being colonialists themselves.

     Another illusion stems from the fact that the exploiter and the

exploited are within the same "boundaries" and Turks and Kurds inhabit

the same geographical area in certain settlements, even without a

significant difference between their standards of living. Not only that

this does not constitute any proof of the absence of colonialism but,

on the contrary, must be seen as something facilitating it.

     As a matter of fact, such a state cannot be expected to

discriminate in

terms of economic exploitation. Under the Czarist regime in Russia,

areas such as Kazakhstan, the Caucasus, etc. were colonies of the

Czardom despite "shared boundaries". Colonies do not necessarily have

to be located overseas, or in remote places. This illusion is partly

associated with the historical form of the European colonialism.

     That Kurds can reach the highest echelons in the state apparatus,

in political parties and in business in Turkey is yet another source

of confusion. It is true that all doors are opened before those Kurds

who deny their "Kurdish Identity". The opening of all doors before

these people at the cost of the denial of their identity creates a

significant illusion. A Kurd denying his own identity is often turned

into a racist and Kurdophobe... This is an interesting psychological

state. There must certainly be a psychological or psychoanalytical

explanation to that... One who denies his identity is confronted with

the dilemma of filling the "vacuum" thus created with the identity of

the oppressing nation and exhibits the features of a "distorted

personality" psychologically... (Certainly, those mentioned here are

often members of the intelligentsia).

     Under the Roman Empire, the greatest enemies of slaves were the

Liberti. In Turkey, one who has denied his Kurdish identity can

become the president of the republic, prime minister, minister,

professor, under-secretary, general, businessman, etc. In fact, these

people supply considerable ideological ammunition to colonialist

practices of the state apparatus and business. The impression given is

that there is no "discrimination" or "oppression". Thus these men

facilitate both oppression and its legitimation. Consequently,

democratic demands of the Kurds are rendered ineffective easily.

     Here it would be wrong not to underline a fact: Despite the

Turkish state's racist, chauvinistic and discriminatory policy, the

other minorities, including the Turkish people as well, have almost

never adopted a "discriminatory", "racist" and "chauvinistic" position.

This sort of "extremist" elements are quite rare within the culture of

the working people. Therefore, the "discriminatory" practice is not

something approved of by the working people.

     At this point, one needs to remember the substance of the

concepts of colonialism and imperialism and the meanings of these two

concepts. First, direct colonialism inevitably embodies the element of

force. In other words, direct colonialism is accompanied by military,

political, cultural and ideological oppression. This necessitates

physical presence of the colonialist in the colony. Imperialism does

not necessarily embody the element of force. Therefore imperialism is

more of an economic category. As a matter of fact, during the fifteen

years or so following the end of the World War II, classical

colonialism was "liquidated" but imperialist exploitation deepened.

     Indeed, the form of exploitation that fits in the logic of

capitalist production is one that does not directly embody the element

of force. Capitalist exploitation was initially accompanied by the

element of force because this was necessary for establishing firmly

capitalist relations in colonies and breaking the resistance of and

liquidating traditional structures. The physical presence of

colonialist countries could be dispensed with after a certain stage at

which exploitation became a domestic category. After this fact was

recognized, after it was observed that exploitation became a domestic

category, imperialist countries withdrew their administrative, military

and other apparatuses from their colonies. As a matter of fact, rivalry

between capitalist states was originally one of the sources of

imperialist colonialism. Besides there were secondary factors including

"national prestige" and the like. The colonialist state makes direct

oppression and control possible, but its physical absence helps reduce

costs of exploitation (as long as local collaborators undertake this

business). Thus the colonialist state avoids a lot of spending, too.

     The removal of direct political-military-police control in the

colonies was believed to be the end of colonialism. Today, however,

resources of the Third World are carried to imperialist countries on

a far greater scale than in the colonial period. Therefore, the

relationship between the State of Turkey and Kurdistan does not

constitute a category of imperialist exploitation. The situation is one

which also directly involves political, military, cultural and

ideological subjugation. Therefore, there exists the status of a direct

colony.

     This is exactly where the distinctive nature of the National

Struggle lies. It is, in the last analysis, the annexation of a part

of Kurdistan. To quote Lenin, annexation "means the forcible

containment of a nation within the boundaries of a certain state". (11)

What is determinative here is the existence of two different nations,

one forcibly confining the other within her boundaries. But the Turkish

administration has always denied the existence of the Kurdish element

which it has subjugated since the 1920s. This official view was

expressed by the daily Son Posta, in its issue dated 11 April 1946, as

follows: "There has never existed a Kurdish minority in Turkey, whether

nomadic or sedentary, with or without a national consciousness" (12)

However, this denial is not something peculiar to the Turkish State

alone. The Iranian administration regards the Kurds who fight for their

autonomy as Persians. The Iraqi administration considers them Arabs.

It alleges that their language is a dialect of Arabic. The situation

is not different in Syria, either... Once General Cemal Gürsel said:

"In no period of history has there been an alien immigration to our

Eastern provinces, which could have left the present inhabitants there

as its sediments. On the surface of the Earth there is no race with a

distinctive identity that can be called 'Kurdish'". (13)

1. The non-existent Kurds revolt

     Information available on the distant history of the Kurds is

contradictory. But we have a better knowledge of the period of the

Kurdish history after the Kurds were subjected to the process of

Islamization by Caliph Omar. Kurdistan, known as the homeland of the

Kurds, was conquered by Iranians in 550 B.C. The Kurds retreated to the

mountainous areas to resist the Iranians.

 

Full & Egal Universal Law Academy