This article was first published in Daktilo1984.
Introduction
Freedom of expression and a free and independent judiciary mechanism are among key freedoms in liberal democracies. In liberal democracies, citizens have a right to express their opinions without the fear of severe punishment on political issues like the criticism of officials, and the prevailing ideology. This article is an attempt to analyze the cases opened against people for ‘insulting’ president Recep Tayyip Erdoğan. It can be argued that the opening of these defamation cases is an extension of a tradition of targeting freedom of expression as well as being a reflection of growing authoritarianism and the collapse of judicial independence in Turkey.
Freedom of Expression at Stake: An Overview of Turkish Context
Article 26 of the Turkish Constitution regulates freedom of expression. According to Constitution, “everyone has the right to express and disseminate his/her thoughts and opinions by expression, in writing or in pictures or through other media, individually or collectively...” The principle of freedom of expression has always been on shaky ground in Turkey. The laws such as the law concerning crimes committed against Atatürk and Article 301 of the Turkish Penal Code which prohibits insulting Turkey, the Turkish nation, or national heroes such as Atatürk have been used repeatedly to curb freedom of expression. In addition, the Prevention of Terrorism Act has been used in a similar way.
In previous decades, most freedom of expression related prosecutions were about the denigration of Atatürk and the territorial integrity of Turkey. In the ruling Justice and Development Party period, these have been replaced by prosecutions involving denigration of Islam, and defamation of the president. There has been a noticeable rise in the number of defamation cases filed after the election of Recep Tayyip Erdoğan as president. Of the total of 6.860 cases filed between 2010 and 2016, 6.272 were filed in the period 2014-2016. [1]
The Crime of ‘Insulting’ President
Article 299 of the Turkish Penal Code says that “Any person who insults the President of the Republic shall be sentenced to a penalty of imprisonment for a term of one to four years. Where the offence is committed in public, the sentence to be imposed shall be increased by one sixth. The initiation of a prosecution for such offence shall be subject to the permission of the Minister of Justice.” Even though the law notes that the prosecution is subject to the permission of the Minister of Justice, this is purely procedural. Insulting the president is punishable by up to four years in prison, but the law has previously been invoked only rarely. During the era of Abdullah Gül’s presidency, the number of the cases filed under Article 299 had been 858. However, under the presidency of Recep Tayyip Erdoğan only in the year of 2020 31.297 investigations were launched. [2]
The investigations were launched not only for adults but even for school children. In 2020, 290 children were prosecuted with the offence of insulting Erdoğan. 84 of the 290 children were in the 12-15 age group and 206 were in the 15-18 age group. [3] In 2014, a 16-year-old student in Konya was arrested. In 2016 a 13-year old student was sentenced to 1 year and 9 months of imprisonment over a Facebook post while the execution of the verdict was deferred. [4] Similarly, in 2018, the university students faced accusations of insulting Erdoğan for holding up a satirical banner in the graduation ceremony of Middle Eastern Technical University. The students were arrested and then released after Erdoğan’s lawyer had withdrawn the lawsuits.
Artists have been in the other group being targeted by the cases filed under Article 299. In 2015, sculptor Mehmet Aksoy was convicted for “insulting Erdoğan” after saying “I'm not going to invest illicit money in making a sculpture.” which he made after winning another case he had filed against Erdoğan. Prosecutors demanded 56 months in jail for the artist who allegedly insulted the president by saying his earnings were illegitimate. [5] In 2017, Pianist Dengin Ceyhan was detained with the same charge. Another example is actor Müjdat Gezen. Gezen (78) was summoned to give a statement to prosecutors after his statements he made about Erdoğan in the broadcast of Halk TV in 2018. As a more recent example, in April 2021, the 83-year-old actor Genco Erkal gave his testimony in an investigation concerning charges of “insulting Erdoğan”.
The issue of insulting the president has generated an atmosphere of polarization even in family relationships. An example revealing this occurred in 2016. A man filed a legal complaint against his wife on the grounds that she insulted Erdoğan. According to news reports, the man had warned his wife not to curse Erdoğan when he appeared on television and she defied him. [6]
Social media has been one of the arenas through which the crime of “insulting the president” is allegedly committed. Twitter posts may cause serious legal troubles and even imprisonment for the users if they are convicted. Such a case occurred in November 2021, legal proceedings were initiated against 30 citizens over Twitter posts saying that Erdoğan had died and one citizen was put under house arrest [7]. After an investigation into 36 social media accounts, detention warrants were issued for 8 users on grounds of sharing “insulting” posts about Erdoğan and four were detained. Another case was opened against lawyer Efkan Bolaç. Bolaç was put on trial for “insulting Erdoğan” due to the Carlos Latuff cartoons that he shared on social media. The first hearing of this case will be held in September 2022.
On the other hand, it is almost an everyday-routine to see people from political opposition facing accusations of ‘insulting’ Erdoğan. In January 2022, a probe was launched against two deputies Engin Özkoç and Aykut Erdoğdu of the main opposition Republican People’s Party for the comments they made on TV. Nonetheless, the defamation cases do not have a fixed character which only targets the people belonging to political opposition. There are quite different groups of people who have been subjected to the conviction of “insulting Erdoğan”. For example, in 2015, at the funerals of martyrs in different cities of Turkey, the relatives of martyrs who rebelled with their pain were arrested on the charge of “insulting Erdoğan” [8]
Journalists have been among the people who have suffered the most from being offended on the grounds of insulting Erdoğan. An example is the case opened in 2015 against Perihan Mağden. Mağden was accused for an interview in which she described Erdoğan as a ‘wild tiger’ and ‘like a wild animal trapped in a corner’. The indictment stated that Mağden’s statements “went far beyond criticism and clearly could be regarded as insults.” Another journalist who was convicted is Hasan Cemal. A lawsuit was filed against Cemal for his social media posts. A recent example of the imprisonment of a journalist was witnessed on January 22, 2022. Sedef Kabaş was detained for insulting Erdoğan and sent to prison despite not naming Erdoğan directly in a proverb saying: “When the ox comes to the palace, he does not become a king, but the palace becomes a barn.” Facing up to 12 years and 10 months in prison Kabaş was released after spending 49 days under arrest. [9]
According to Benjamin Ward, Europe and Central Asia director at Human Rights Watch insulting the president should not be a crime [10] however Erdoğan argues that defamation in the name of freedom of speech cannot be accepted and says ““Under the premise of limitless freedom [of speech] new victims are emerging every day. The victims can’t find any authority or any legal institution to claim their rights. A system where the one who commits the crime gets away with it can’t be labeled as freedom.” [11]
The crime of insulting an ordinary citizen is punishable by imprisonment from 3 months to 2 years according to Article 125 of the Penal Code whereas if the same crime is committed against the president the imprisonment is from 1 year to 4 years. Article 90 of the Turkish Constitution states that international treaties to which Turkey is a party hold the force of law. If a conflict occurs between treaties relating to fundamental rights and freedoms and Turkish laws, the former prevail over the latter. It is obvious that the European Convention on Human Rights prevails over Turkish law in the event of conflict. The fact that the Turkish Penal Code provides more protection for state officials than it does for ordinary citizens against the crime of insulting is contradictory to European Convention on Human Rights. [12]
Conclusion
The transformation of Turkey into presidential system in which the president holds more control over the executive, legislative and judicial branches has led to an environment of rising authoritarianism. The cases opened against people for ‘insulting’ president reveal this authoritarianism. The demonization and criminalization of critical voices is a sign of the politicization of the judiciary and a blow to rule of law as the crime of insulting president is controversial in terms of law. There are discussions such as which words will be considered as insults, and whether the law protects an office or the personality of the president. There are also contradictions between the decisions of the Turkish courts and the decisions of the European Court of Human Rights regarding the crime of insulting president.
The people who have faced trial for insulting Erdoğan include politicians, journalists, artists, academics and even school children. Preventing citizens from expressing themselves on political issues without the danger of punishment is a practice totally at odds with liberal democracy norms. As long as Article 299 of the Turkish Penal Code continues to be used to punish political expressions, the convictions and grievances contrary to the rule of law will occur in many cases. It is clear that legal practices that vary from person to person will cause the state apparatus to be questioned in every aspect. Turkey is a unique country having a rich population mosaic of different ethnicities, religions and worldviews and forcing everyone to think alike will never work. Those who allow the judiciary system to be used as a tool of pressure and punishment on society will see that this tool of punishment can also be used against them when they lose power.
References
[1] Y. Akdeniz, Y. and K. Altıparmak, “Turkey: Freedom of expression in jeopardy”, 2020, available at https://www.englishpen.org/wp-content/uploads/2020/07/Turkey_Freedom_of_Expression_in_Jeopardy_ENG.pdf
[2] A. Ekber Şen, “Erdoğan’a hakaretten 63 bin 41 kişiye dava açıldı”, Nov. 13, 2020, available at https://www.sozcu.com.tr/2020/gundem/erdogana-hakaretten-63-bin-41-kisiye-dava-acildi-6123830/
[3] Bianet, “'Insulting Erdoğan': Nearly 10,000 people stood trial in a year, including 290 children”, July 21, 2021, available at https://bianet.org/english/freedom-of-expression/247507-insulting-erdogan-nearly-10-000-people-stood-trial-in-a-year-including-290-children
[4] C. Tecimer, “The Curious Case of Article 299 of the Turkish Penal Code: Insulting the Turkish President”, July 20, 2018.,available at https://verfassungsblog.de/the-curious-case-of-article-299-of-the-turkish-penal-code-insulting-the-turkish-president
[5] IslamTimes.org “Turkish sculptor faces 4-year jail for ‘insulting’ Erdogan”, June 24, 2015, available at https://www.islamtimes.org/en/news/468712/turkish-sculptor-faces-4-year-jail-for-insulting-erdogan
[6] I. Tharoor, “Turkish man sues wife for insulting President Erdogan”, Feb. 23, 2016, available at https://www.washingtonpost.com/news/worldviews/wp/2016/02/23/turkish-man-sues-wife-for-insulting-president-erdogan/
[7] ABC News, “Turkey: 30 probed for Twitter posts suggesting Erdogan died”, Nov. 3, 2021, available at https://abcnews.go.com/International/wireStory/turkey-30-probed-twitter-posts-suggesting-erdogan-died-80946230
[8] B. Kolbüken, “Cumhurbaşkanına Hakaret Suçu Üzerine bir Deneme”, Ankara Baro Dergisi, No: 3, (2015): 33-50.
[9] Hürriyet Daily News, “Journalist Sedef Kabaş released after trial”, March 11, 2022, available at https://www.hurriyetdailynews.com/journalist-sedef-kabas-released-after-trial-172146
[10] Human Rights Watch, “Turkey: End Prosecutions For ‘Insulting President’”, Oct. 17, 2018, available at https://www.hrw.org/news/2018/10/17/turkey-end-prosecutions-insulting-president
[11]Middle East Monitor, “Erdoğan: Defamation in the name of freedom of speech should stop”, Dec. 2, 2020, available at https://www.middleeastmonitor.com/20201202-erdogan-defamation-in-the-name-of-freedom-of-speech-should-stop/
[12] C. Tecimer, “The Curious Case of Article 299”
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