REPUBLIC OF TURKEY
ANKARA
OFFICE OF THE CHIEF PUBLIC PROSECUTOR
Bureau of Press

Press Investigation No	: 2004/2868
Press Case No		: 2005/815
Press Indictment No		: 2005/250 

INDICTMENT
TO THE ANKARA PENAL COURT OF FIRST INSTANCE

Litigant		: Public lawsuit
Suspects	: 1- Baskın ORAN, (Citizenship No: 33187830306) the child of Hüseyin Ekrem and Zehra, DOB: 26/07/1945, birth registry at Izmir province, Konak district, Alsancak neighbourhood, Volume 1, family no: 732, no: 7, address: Zekai Apaydın sok. No: 24 Oran, Çankaya/Ankara.

	2- Ibrahim ÖZDEN KABOĞLU, (Citizenship No: 13096627396) the child of Hüseyin Avni and Yadikar, DOB: 10/04/1950, birth registry at Artvin province, Borçka district, Demirciler village, Volume 15, family no: 111, no: 15, address: Cevatpaşa sok. No:26 Koşuyolu, Kadıköy/Istanbul.

Legal Counsels	: 1- Attorney Oya AYDIN, Ankara Bar Association, Necatibey cad. 6/145 Kızılay/Ankara.
	2- Kazım GENÇ, Ankara Bar Association.

Informants	: 1- Mahir AKKAR, the child of Cemal and Melek, DOB: 09/07/1952, 66 sok. 14/14 Emek Çankaya/ANKARA
	2- Fethi BOLAYIR, Chairman of the Association for Societal Thinking (Toplumsal Düşünce Derneği)

Offence	: Inciting the people to enmity and hatred
	Open denigration of the judicial organs of the State. 

Date of offence	: 07/10/2004, 22/10/2004 

Articles whose enforcement 
is requested	: Article 216/1 of Law No: 5237 (for both suspects)
	  Article 301/2 of Law No: 5237 (for both suspects)

Place of Crime 	: Ankara 

Evidence	: Witness testimonies, decoding of a tape and minutes of the meeting.

Following the investigation conducted:
At the time of the crime, Baskın ORAN –one of the above listed suspects- was the press officer and the member of the Human Rights Advisory Board and the Minority Rights and Cultural Rights Commission, which is one of its sub-committees of the Board; and İbrahim Özden Kaboğlu -the other suspect- was the member and the chairman of the Human Rights Advisory Board. 

During its session held on 01.10.2004, the Human Rights Advisory Board voted the report of the “Minority Rights and Cultural Rights Working Group”, which had been drafted by the “Minority Rights and Cultural Rights Commission” and is currently subject to investigation, and the report was adopted with 7 votes against, 24 votes for and 2 abstentions. After being adopted, the report was initially made public by suspect Baskın Oran and later on the revised version of the report which was submitted to the Prime Ministry was made public once again on 22.10.2004 this time by both of the suspects. 

In this case, it is first necessary to set out the legal basis, the establishment, duties and working principles of the Human Rights Advisory Board.

The Human Rights Advisory Board has been established based on Additional Article 5 which has been added to the “Law Amending the Decree No: 3056 on the Organization of the Prime Ministry” through Law No: 4643 adopted on 12.04.2001.

Accordingly;
The Human Rights Advisory Board has been established to ensure communication between the relevant public institutions and the NGOs on issues relating to human rights and to function as an advisory body on national and international issues in this area. The Board shall be affiliated to a State Minister to be designated by the Prime Minister. The Advisory Board shall consist of representatives of ministries, public institutions and bodies and professional associations relating to human rights, representatives of human rights NGOs and persons who have publications and works in this field. The Advisory Board shall be chaired by a person to be elected from among them. The secretariat services of the Board shall be performed by the Human Rights Presidency. The expenses of the Board shall be met from the budget of the Prime Ministry. According to tentative Article two of Law No: 4643; 

“The principles and procedures relating to the establishment, duties and functioning of the Supreme Board of Human Rights, the Human Rights Advisory Board and the delegations to be appointed to investigate human rights claims shall be laid down in a regulation to be issued by the Prime Ministry within four months following the entry into force of this law”. Following this provision, on 23.11.2003 the regulation laying down the principles and procedures relating to the establishment, duties and functioning of the Human Rights Board entered into force. 

According to Article 5 of the Regulation, the duties of the Board are as follows;
a)	To issue an opinion and recommendation, as well as to give advise and to submit reports on issues relating to the promotion and protection of human rights,
b)	To issue an opinion and to advise administrative measures in order to ensure that the existing legislation and draft bills are brought into line with the fundamental principles of human rights, and the international instruments  and mechanisms in this area, 
c)	To ensure communication among the relevant State institutions, universities and civil society organisations on issues relating to human rights,
d)	To act as an advisory body on national and international affairs encompassing human rights,
e)	To take up the issues requested by the Supreme Board, and to conduct the necessary work and to submit an opinion,
f)	To submit reports to the Minister and the Supreme Board on the general situation of human rights violations throughout the country and prohibition of torture, freedom of thought, freedom of association as well as on other issues in the field of fundamental human rights,
g)	To submit an opinion to the Minister and the Supreme Board on international affairs relating to human rights, including racism, all forms of discrimination and xenophobia.

Again according to Article 6 of the Regulation, the working principles of the Board are as follows;
a)	The Board convenes three times per year during the first week of February, June, and October;
b)	Where necessary in emergency situations, the Board can convene upon the call of the Minister or the Chairman;
c)	The term of office for the board members is three years. After the completion of this period, they can be re-assigned;
d)	 In its first meeting, the Board shall elect a chairperson, two deputy chairpersons and one reporter from among its members. The office terms of the chairman, his deputies and the reporter are three years. Those who complete their terms in office can be re-elected; 
e)	In the absence of the chairperson, the Board shall be chaired by the Deputy with the highest number of votes;
f)	The meetings shall be held with one more than half of the members. The decisions shall be taken with the votes of one more than half of the participating members. Chairperson’s vote shall count two where there is equality of votes;
g)	If a board member does not attend three subsequent meetings without an excuse, it shall be considered that he has withdrawn from membership. In order to replace a withdrawn member or a member who is considered to have withdrawn, the same assignment procedures shall apply;
h)	The secretarial work of the Board shall be performed by the presidency;
i)	The expenses of the Board shall be met from the Prime Ministry’s budget;
j)	The resolutions of Board meetings shall be conveyed by the Chairman to the Minister and the Supreme Board as a report.

In light of these provisions, quorum for the meetings of the Board is half of the total number of members of the Board plus one, and for the decisions it is half of the members participating in the meeting plus one.
The number of members of the Human Rights Advisory Board (to which the suspects are also members) was 78 on 01.10.2004, according to the letter dated 23.12.2004 of the Human Rights Presidency of the Prime Ministry. In such case, according to Article 6/f, quorum for the meetings is at least 40 members, and quorum for decisions is at least 21 persons if at least 40 members have participated in the meeting. 
Also according to Article 5 of the Regulation, following its activities the Board has to issue its opinion, make recommendations and report to the Minister and the supreme board. Apart from meeting its expenses, the Prime Ministry does not have any relation or link with Board. 
The parts of the report of the ‘working group on minority rights and cultural rights’ which are subject to investigation has been cited below. However, they will also be taken up and analyzed in detail, later on.
 The report has been subject to investigation due to the following reasons;
1-	Under part 2 of the Report entitled ‘The concept of minority in Turkey, its definition and cultural rights’, it is claimed that Turkey faces serious difficulties in relation to the definition made for minorities and that Turkey has  breached the provisions of the Lausanne Treaty,
2-	In the part under the heading ‘Relevant legislation and Practice in Turkey’, it is claimed that the principle of “national integrity” is wrong,
3-	In the part under the heading of ‘Relevant Court Judgments in Turkey’, it is claimed that the Constitutional Court undermines democracy,
4-	In the section on ‘The Theoretical Cause: The Relationship between the Super identity and Sub identities’ under the heading of ‘Foundations of the Situation in Turkey’, instead of the super identity of “being a Turk” the super identity of “being from Turkey” is recommended.

Below is the analysis of the Report in light of the parts mentioned above.

1-The Report claims that there are mainly three types of minorities according to their ethnic origin, religion and language, that Turkey rejected all three in Lausanne and is facing difficulties in view of the developments in the definition and rights of minorities, furthermore, that Turkey is violating the Lausanne Treaty. As an example Article 39/4 of the Treaty has been cited in the report. This Article grants all citizens the right to use the language they choose; however the report states that the implementation of this Article is restricted. 
The Lausanne Treaty, which was signed on 24 July 1923 and was adopted by the TGNA on 23 August 1923 through laws numbered 341, 342, 343 and 344, is a founding document that is still valid and in force, and it is the document which certifies the independence of the Republic of Turkey in international law. The issue of minorities was the most debated issue of the Treaty, and it was taken up in 5 meetings of the first committee and 16 meetings of the sub-committee on minorities. Particularly, during the discussions of the sub-committee, attempts were made to include “all minorities” under the scope of the term “minority”, as is the case in the Report subject to investigation. So, contrary to what is alleged in the Report, there is no evolution in the definition of the term “minority” in terms of religion, ethnic origin and language, and the definition of the term “Minority” was being made on the basis of these three grounds at that time as well.  Despite that, according to Part 3 of the Lausanne Treaty on the “Protection of Minorities”, contrary to what is claimed in the Report the minorities in Turkey are non-Muslim citizens who are identified on the basis of religious differences. Furthermore, Article 45 of the Treaty states that “the rights conferred on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Muslim minority in her territory”, thereby clearly noting who are considered to be a “minority” in Turkey. So, in Turkey minorities are the non-Muslim citizens. Apart from them, there are no other minorities based on ethnic, religious or linguistic grounds. All citizens who are outside of the scope of the mentioned group, who have played a role in the establishment of this State and who are within these borders are the “constituent elements of this State and not “minorities”. It is worth noting that contrary to the Report which states that the definition of a “minority” is based on religious, ethnic and linguistic grounds, Greece also considers “religion” as a criterion in parallel to Turkey. 

Likewise, Article 39/4 of the Treaty of Lausanne, which is claimed to be applied insufficiently, does not cover all “Turkish nationals” as claimed in the report. Articles from 37 to 45, in which Article 39 is also included, are articles composed under the title of “Protection of Minorities”, and they are all articles that cover the arrangements related to “minority” rights accepted for Turkey in the Treaty. Moreover, the phrase “the provisions of the present section” also indicates that these articles are applicable solely for the “minorities” 

On the other hand, in a communication sent to the executive secretariat after the acceptance of the OSCE Copenhagen document, Turkey has made references to the Treaty of Lausanne by explaining that “the concept of national minority included herein covers only the groups whose statuses are determined via bilateral and multilateral international instruments, and the arrangements of the Copenhagen document will be applied in accordance with the Constitution and the internal legislation”; Germany, Greece and Bulgaria have also followed the same method. 

Again, taking into consideration an application of the French State will make a significant example at this point and will reveal the intent included in the report: 

The European Commission against Racism and Intolerance (ECRI) which operates under the European Council has, in a report it prepared in year 2005, warned France about minorities and has asked France to sign the “Framework Convention for the Protection of National Minorities” and the “European Charter for the Protection of Regional and Minority Languages”, and has criticized France for not legally accepting the concept of minority. In her response, France, that is the only EU member country not to sign the Framework Convention for the Protection of National Minorities, has said: “France is an indivisible, secular, democratic and social Republic. All citizens are equal before the laws, without any discrimination based on ethnic origin, race or religion. Minority is a concept that is alien to the French laws. Conferring collective rights is contrary to the principles of indivisibility, equality and unity on which the country has been founded. A rigid handling of the concept of protection of minorities may lead to unfavourable results.”

Therefore, to make/create a new minority definition along with a new application thereof other than the concept of “minority” accepted with the Treaty of Lausanne will cause chaos, and will lead to a result that will endanger the unitary structure of the State which includes a lot of ethnic groups within it, the territorial unity and the indivisible unity of the nation. 

The report which is the subject of enquiry is a document prepared by Baskın Oran, one of the suspects. In the article titled “Globalization and Minorities” written by the suspect in year 1994, the same opinions on the Treaty of Lausanne and the minorities were put forward. However, in his work named “The Western Thrace Question in Turkish-Greek Relations”, the suspect introduces a different interpretation to the issue of minorities, and says: 
“Turkey resisted these requests relentlessly. In the end, she accepted the minority protection obligations of the same type applied to other countries of Eastern Europe (and also to Greece) on the condition that they would be applicable only for the non-Moslem minority. These minority protection obligations constitute articles 37-44 of the Lausanne Peace Treaty. Article 45, which is the last article of Section III Protection of Minorities, says: 

‘The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory.’ Hence, the young Turkish State has, in addition to not conferring any minority rights other than those conferred by the other countries, also kept the Muslim minority out of the scope of the concept of minority and has once again provided assurance for the Muslims of the Western Thrace (despite the existence of the Greek Sevres) with the last article of the section. As will be recalled, severe provisions beyond these standard articles were included in the Ottoman Sevres. The Turkish committee at the Lausanne Conference objected with an unrelenting stance to the non-standard minority protection provisions such as establishment of a minorities commission in Istanbul, which were tried to be imposed on the young Turkish state. In addition, they managed to get two very significant compromises. In addition to ensuring that only the non-Muslim minorities were included in the Treaty, they introduced another provision which was not included in the standard minority protection treaties of the League of Nations period, and with Article 45 Turkey consented to provisions of Articles 37-43 only on the condition of reciprocity with Greece.” 

As can be seen, in this work written by the suspect, it is clearly stated that in Turkey the concept of minority exists only on the basis of non-Muslims, and that Articles 37-45 of the Treaty of Lausanne should be applicable only to these minorities; hence, there are no errors or violations in the implementation of the treaty articles, related to which the report requires the filing of a law suit with this aspect. 

2- In the report, it is said:  “ .. However, the concept of the “indivisible entity of the nation” is quite perverse to a Westerner although it comes natural to us. It implies that the nation is monolithic, effectively denying the various sub identities that make up the nation and therefore contravening the essence of democracy. In the area of international human rights, the criteria used in the restriction of rights include “national security” and “territorial integrity” but not the “indivisible entity of the nation”. When the principle of the “indivisible integrity of the State with its territory and nation”, which is repeated in countless articles of the Constitution and laws, is interpreted in such a way as to reject sub identities, the legislation in Turkey becomes legislation that tends to assume that “recognition of sub identities” is meant to disturb the said identity, and therefore to charge those who do so with “separatism and subversion”. 

In Article 3/1 of our Constitution which is still in force, it is said that “the Turkish State, with its territory and nation, is an indivisible entity”. As known, “nation” is one of the elements that form the state. The indivisible unity of the nation, which is one of the fundamental tenets of the Republic of Turkey, was described by Atatürk as follows: “The form of our state today has been established in the most developed way which disposes of the old forms going back to centuries. The common bond which the nation considers between its members in order to continue its existence has changed its centuries old form and nature, in other words, the nation has been gathered under the individuals with a bond of Turkish nationality in stead of a religious or sect-based bond.” 

The general principles included in Section I of the Constitution which also includes this Article constitute the fundamental tenets of the Turkish state. According to this, the Republic of Turkey is a Unitarian state with her territories and nation. Here the term “nation” is not one ethnic origin but a community made of citizens who live in that country, who have a common history, with all the elements that make that nation. In other words, it is emphasized that the country physically has a central/Unitarian structure, and just as well those who live in that country also have a Unitarian structure. Therefore, there is no denial of sub-identities. And hence, there is no contradiction between the principles of “the indivisibility of the nation” and “cultural diversity”. 

In this section of the report, it is expressed that the concept of “indivisible entity of the nation” is quite perverse for a Westerner. However, Article 2 of the 1978 Spanish Constitution says: “The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all”. As can be seen, the Spanish Constitution, just like the Constitution of the Republic of Turkey, includes the principle of indivisibility of the nation. It is obvious that desiring the abolishment of one of the fundamental tenets that form the existence of a State under the pretext of protecting the minorities will disturb the unity, and the existence of such a tenet will not be hard to understand for Westerners. 

3. The report includes this opinion: “...nevertheless, it is also true that the Constitutional Court, while making interpretations, ignores certain fundamental concepts of law and thus causes further damage to democracy in Turkey”. 

As known, according to Article 146, The Constitutional Court is one of the supreme courts, and its duties are listed in Article 148. In addition, in accordance with Article 18/4 of the Law numbered 2949 on the Establishment of the Constitutional Court and its Trial Procedures, the Constitutional Court also has the duty to see the cases related to banning political parties. Discussion of a decision rendered by a judicial body on a legal basis is a very common, even an essential practice for law. However, the report not only discusses and criticizes the decisions given by the Supreme Court, it also shows the Constitutional Court as an obstacle in the realization of democracy. Yet, with many of its decisions the Constitutional Court has made contemporary interpretations which clear the path for democracy and freedoms in Turkey. 

4- Again, in the report it is suggested under the title “The Theoretical Cause” that as a result of the emergence of the sub-identity of being ‘Turkish’ as a super-identity, the other sub-identities have been alienated, and suggests that the super-identity should be ‘Türkiyeli” (being from Turkey) in stead of being “Turkish”. 

First of all, it should be clarified that the word “Turkish” here is not used in an ethnic-sociologic meaning. It covers all the citizens of the Republic of Turkey regardless of their ethnic origins in a legal sense. Similarly, as in Article 88 of the 1924 Constitution, Article 66 of the current Constitution of the Turkish Republic includes the provision that “everyone bound to the Turkish state through the bond of citizenship is Turkish”, and these transparent arrangements make it clear that the essential thing is the bond of citizenship. In other words, here the word “Turkish” is used not in a racial sense but in the meaning of a “citizenship” bond. On the other hand, the fact that the word “Turkish” expresses not a race but a nation is also included in international conventions. As expressed above, the Treaty of Lausanne is an instrument with which the existence of the Turkish State in the international arena has been affirmed and which is still in force and valid. For instance, articles 38, 39 and 40 of the Lausanne Treaty use the term ‘Turkish citizens’, not ‘citizens of Turkey’. Again, in Article 38 of the Constitution of the Republic of Turkey which regulates the oath of the President of the Republic of Turkey, the phrase “against every danger which may menace the Turkish state” also uses the expression “Turkish state”. 

Again in the report, it is said that the citizenship definition of the 1982 Constitution is narrower than that of the 1924 Constitution, that the 1924 Constitution uses the term “the inhabitants of Turkey” and that this term only refers to the inhabited territories, and that it brings to mind  the super-identity of ‘being from Turkey’. Yet, this definition does not bring to mind the definition of “being from Turkey” as claimed in the report. Because, the term “inhabitants” used here means “people”. That is, it defers to the people of Turkey, and even this definition emphasizes the unity of the people, that is the “inhabitants” composed of more than one ethnic origins. 

Likewise, England calls its citizens English, not “people from England”; the state of Germany calls its citizens German, not “people from Germany”, the state of Spain calls its citizens Spanish, not “people from Spain”. The state of France calls its citizens French, not “people from France; and the people living in these countries are not composed of a single race. 

For example, the French nation, that is the ethnic elements forming France, consists of Celts, the Flemish, Alsatians, Catalans, Basques, Bretons, Normans and other races. Whereas it does not cause any problems for a French citizen to say he is French when saying “Je suis Français” or an English citizen saying “I am English” does not create any problems, what is the reason behind asking that a Turkish citizen calls himself/herself a “Türkiyeli” (a person from Turkey), or is it pertinent to expect it? When suggesting that the term “Türkiyeli”, a territory-based term, in stead of “Turk”, is the report unaware that the name of the country, Turkey (Türkiye) , also has an ethnic association, or is it yet too early for such a warning? 

On the other hand, the concepts examined individually above are the most fundamental, essential elements of the Turkish state, and various institutions of the State have been charged with the duty to protect these elements in many laws, particularly the Constitution. 

Implementation of law provisions that are in favour: 

On the date of the offence, which is 17.10.2004 and 22.10.2004, the Turkish Penal Code numbered 765 was still in force, whereas on the date when the suit was filed, the penal code numbered 5237 which became effective on 01.6.2005 was in force. 

The offence of provoking people to resentment and hostility, which is claimed to have been committed by the suspect is included in Article 312/2 of the Law numbered 765 and provides for a penalty of imprisonment for 1 year to three years. 

Article 312/1 of the law numbered 765 has been arranged in Article 216/1 of the Law numbered 5237, and provides for a penalty of imprisonment for one to three years for such actions. 

Again, the offence of public humiliation and degradation of the intangible entity of the judiciary is regulated in Article 159/1 of the Law numbered 765, and provides for a penalty of imprisonment for 1 year to three years. 

Article 159/1 of the Law numbered 765 has been arranged in Article 301/2 of the Law numbered 5237, and provides for a penalty of imprisonment for 6 months to two year. 

Hence, since the penalties provided for the offence of provoking the public into resentment an hostility are the same in both laws, the Law no.5237 does not constitute a situation in favour of the case in terms of penalty. However, the element of the offence in Article 312/2 of the Law numbered 765 is “in a way that will be dangerous for public order”, whereas in Article 216/1 of the law numbered 5237, the element of the offence is provided for as “emergence of a clear and imminent danger for public security”. In that regard, in terms of the elements of the offence, the application of Article 216/1 of the Law numbered 5237 is in favour of the suspects. 

However, as the upper and lower limits of the penalty provided for in Law numbered 5237 for the offence of insulting the intangible entity of the judiciary are lower, the application of the law numbered 5237 would be in favour in terms of this action. 

The assessment of the procedural aspects of voting and adoption of the Report 

According to the result of the voting, the number of participants was 33 in the meeting where the Report was voted on 01.10.2004. Although this number means that the quorum had been achieved since 21 would have been sufficient for a decision, it should be noted that the number should have been 40 in order for the meeting to be held. This means that the number of participants foreseen in the regulation in order for a meeting to be held was not observed, and despite that fact, the Board convened with a number of members less than the number envisaged. Although this procedural condition was not complied with, the meeting was held.

Although for their defence, it was expressed that all meetings of the Board had been open to press and public opinion, and that the issues in the report had previously been expressed in a similar environment and therefore would not constitute an offence, the opinions put forward during the work of the Board were never made a subject to any investigation. What leads to an offence here are ‘the approval of the Report despite the lack of quorum and despite this had been voiced by some members, and making the Report appear as if it were valid and its approval had had complied with the procedures’, and ‘the announcing of the Report as if it were prepared by the “Prime Ministry” and as if it included the confessions of the State’ although the Board had no relation with the Prime Ministry. Additionally, during the announcement of the Report to the public opinion through a press statement, it was presented as the “corrected” form, aiming at the creation of the image that it had been written on the will of all board members. However, according to the minutes of the meeting held on 01.10.2004, there were oppositions to the Report and the scope and extent of the modifications needed on the Report were not concretely clear. That is to say, it is not clear which modifications made in the second report have met which demands of which members; since after the modifications, the Report was not re-voted. Despite all these points, the Report was presented to the public opinion as if it had been “corrected”, as if it had met all the demands and voted in favour despite the lack of quorum. In the same sense, the e-mail sent by suspect Baskın Oran on 04.10.2004 to the Sovereignty of Law Association, the chairperson of which is a member of the Board, says: “The Report has not been given its final form. Therefore, it has not been right to have sent it. I will give it its final form within a few days and send it to you. To avoid reactions, could you please tell the members that it is not the finalized form yet. Because this is how we talked in the last meeting.” This shows that not only it is openly accepted that the Report, which had been voted and claimed to have been adopted despite the lack of quorum, was not the finalized version but also it could lead to reactions in the current form.  Even though this was the case, the Report was announced to public without being re-negotiated and as if it were the final version.

Assessment as regards Article 159/last paragraph of Law No 765 and Article 301/last paragraph of Law No 5237:

In both article 159/last paragraph and article 301/last paragraph, it is stipulated that expressing opinions for the purpose of criticism does not constitute an offence. However what is done in the Report is not mere criticism or expression of opinion but something beyond. The fundamental elements of the Republic of Turkey have been targeted; and in doing so, the Report was presented as if it had been prepared by the Prime Ministry. 

Discussing the offence of inciting people to Enmity and Hatred:

This offence, which has been regulated under both article 312/2 of Law No 765 and article 216/1 of Law No 5237, is an offence of danger. Like it is stipulated in the judgment of the General Penal Board of the Court of Cassation (2004/8-201 merits, No 2005/30): “It is sufficient for the offence to include a clear and present danger; and danger is a concept linked with probability. Or danger is nothing but a probability. Similarly, the instant when the danger is materialised is the time when it can be considered that the situation which presents a clear and present danger exceeds the level of disturbances and disorder that can be seen under normal conditions of public order so that the State has the right to interfere with the situation. In the definition of the adjectives ‘clear’ and ‘present’, clear refers to something so evident that there is no doubt about the existence of danger whereas present refers to the closeness of the possibility of the creation of a damage.

A word of Persian origin, “kin” (grudge, hatred) is defined as “furious enmity against a person or a thing, which necessitates vengeance; rancor.” Again a word of Persian origin, “düşman” (enemy) means “a person who has mal-intentions towards another, who hates him, and who tries to harm that person” whereas “düşmanlık” (enmity) means “the feeling of grudge against the subject nurtured hostility to, aiming at giving harm to or defeating that subject through deliberate act and consideration”. Therefore it is sufficient for the perpetrator to only incite hatred and enmity against a fraction of the society.

The concept of “society” expressed in the article should be considered as “a group of people that gather around common sentiments, interests, ideologies and moral ideals or share the same values” in accordance with the criminal law.

“To incite” means “an explicit psychological pressure imposed on others to act in a certain way”. It refers to a behaviour which has the objective of setting a person into action, and which aims at a direct psychological effect on the person’s will”. Both in article 312/2 of Law No 765, and article 216/1 of Law No 5237, the act of inciting should be conducted in a way to create danger for the public order.

On the other hand, the act of inciting should be performed “openly” thus “explicitly”.

In conclusion, when universal principles and criteria are taken into account, in order for the offence laid down in article 312/2 of Law No 765 and in article 216/1 of Law No 5237 to take place:
-	People should be incited to enmity or hatred against one another; 
-	This act of inciting should be based on social class, race, religion, sect or regional differences, 
-	The acts undertaken during the act of inciting should be such that there may be a potential disruption of public order;
And finally,
- The perpetrator should have the intention to commit that offence. 

When the reactions and the indignation after its announcement are taken into account, all these elements exist in the “Minority and cultural rights” Report prepared by the suspects.

DEFENSE:

İbrahim Özden Kabaoğlu, one of the suspects, used his right to remain silent in his statement while the other suspect, Baskın Oran, rejected the accusation, defending that there were no elements of criminal nature in the content of the report.

On the other hand, the report, which constituted the subject of the investigation, mentions the “Sevres Paranoia”. The Sevres treaty is the treaty that terminated the Ottoman State. With this treaty, the country’s territory was partitioned and actually invaded. However, this Treaty is not recognized by the Republic of Turkey. Therefore, sensitivity towards such a document [the minority report] should not be considered odd. The demands put forward as regards minorities in this document have a great deal of similarities with those provisions of the Sevres Treaty, which led to the invasion of our land. In the presence of such similarities, there is no point in finding it odd being carried away by the “Sevres Paranoia”.

For the motives expressed above, on behalf of the public, it is demanded that suspects Baskın Oran and İbrahim Özden Kaboğlu be tried and punished with the penalties below which correspond to their aforementioned acts:
1.	On charges of inciting people to hatred and enmity: according to article 216/1 of Law No 5237, which corresponds to their acts,
2.	On charges of openly denigrating judicial organs of the State: according to article 301/2 of Law No 5237, which corresponds to their acts.
14/11/2005
(signed)
NADİ TÜRKASLAN 27591
Public Prosecutor

Note: It has been concluded that no additional prosecution was necessary about suspects Ahmet Telli and friends on charges of taking on an offence.