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Ümit Kardaş
Nov 16 2018

Insulting the Turkish President: Article 299 and why Europe says its illegal

The Turkish Penal Code, adopted in 1926, criminalises insulting the president of the Republic. For the past seven years, the government has instrumentalised Article 299 in order to inhibit political criticism and intervene in the right to free speech.

The government has used evidence in social media posts, caricatures, and newspaper editorials to investigate and prosecute these crimes.

Between 2010 and 2017, 12,893 cases of insulting the president were filed. Of these, 12,305 were filed under the presidency of Recep Tayyip Erdoğan, who assumed office in 2014.

The courts have convicted defendants in 2,099 of a total of 5,150 cases. There were an additional 660 cases in which a verdict was reached, but the court adjourned before announcing the decision. 873 cases resulted in acquittal.

In 2016, the 43rd Istanbul Trial Court applied to the Constitutional Court for the repeal of Article 299. It presented the following arguments to justify its appeal:

  • The crime of insulting the president is treated differently than insults to other public servants, and carries higher penalties
  • The recent transition to an executive-style presidency, effected by changes to Article 101 and 102 of the Constitution, will inevitably turn the role of the presidency into a political office
  • The rule of law does not provide for a unique category of crime for any political office
  • Laws that provide specific protections for heads of state violate the European Convention on Human Rights

The Constitutional Court gave a ruling on this application on December 14, 2016. In its decision labeled E.2016/25, K.2016/186, the Constitutional Court provided the following justifications:

  • Equality before the law does not require everyone to be held to the same standards in every respect
  • The president acts as head of state, and represents the Turkish Nation and the Turkish Republic
  • The crime of insulting the president is committed not only against the person, but also against the values and functions that the presidency represents
  • The stipulated punishment is proportional to the protected legal benefit
  • Though freedom of expression secures the freedom to criticize, this right does not grant individuals the right to insult
  • This attack on an individual’s reputation and dignity will not be protected by the legal system.

The reasoning provided in the ruling of the Constitutional Court holds protecting the sanctity of the state and individuals that represent it above all else. This reasoning is in conflict with judicial rulings given by the European Court of Human Rights (ECHR).

In 2002, in the case of France vs. Colombani, the ECHR ruled in favor of the applicants, journalists at Le Monde, who had been censured by the French government for insulting the King of Morocco. The journalists had been convicted of violating Article 36 of the Freedom of Press Law, passed in 1881.

The legal ruling argued that regardless of the interests that a government might pursue in maintaining friendly relations with a foreign government, the privilege of immunity from censure is not guaranteed. If a foreign head of state claims to have suffered insult, they can apply to legal recourses available to everyone else, but cannot benefit from special privileges. Following this decision, France abolished the law in question.

Five years later, in 2007, in the case of Turkey vs. Artun and Güvener, the ECHR ruled that protecting freedom of expression becomes even more important in cases in which the government is attempting to protect its own head of state, and that the head of state should not enjoy special privileges.

In the Spain vs. Otegi Mondragon ruling of 2011, the ECHR held that affording additional protections from freedom of expression to certain individuals violated the spirit of the Convention, and that even the king should not hold a special status. The Court argued that despite the status of the king as an apolitical, impartial arbiter and symbol of the state, the king would not be exempt from criticism pertaining to the carrying out of their official duties or to their representation of the state.

These judicial rulings demonstrate that the ECHR views all legal stipulations that afford heads of state additional protections to be against Article 10 of the Convention.

With the recent constitutional changes that transformed Turkey into an executive-style presidency, the office of the impartial presidency has become a political office, and the president has adopted executive duties. In this arrangement, criminal law protecting the president from criticism results in a system where all executive operations avoid criticism.

It is clear that Article 299 of the Turkish Penal Code violates the European Convention and the legal rulings of the ECHR. As such, the Constitutional Court’s 2013 ruling on Article 90 of the Constitution becomes important.

In this ruling, the Constitutional Court argues that, “According to Article 90 paragraph 5 of the Constitution, conventions are part of our legal system, and carry the force of law. Under the same paragraph, in the event that a discrepancy is found between the law and a convention protecting fundamental rights and freedoms, the convention should take precedence. This rule carries the force of tacit repeal and abolishes laws that contradict the rights and freedoms protections afforded by conventions.”

The Venice Commission, which is attached to the Council of Europe (of which Turkey is a founding member), released a report on the subject in which it called on Turkey to abolish Article 299, arguing that the law violates “European norms.”

All of the laws in the Turkish Penal Code that criminalize general insult and insult against public officials, especially against the president, should be abolished. Individuals that suffer insult should instead take recourse in tort courts and sue for damages.