The Offence Of Insulting The President In The Light Of IHAM And AYM Decisions
Introduction
The offence of “insulting the President”[1] regulated under Article 299 of the Turkish Penal Code No. 5237 constitutes one of the most crucial freedom of expression problems of recent years. According to the data published by the Ministry of Justice, General Directorate of Judicial Records and Statistics, 160,169 criminal investigations and 38,428 public lawsuits were filed under Article 299 of the TPC between 2014 and 2020. Of these cases, 12,281 resulted in conviction and 11,193 resulted in a decision to defer the announcement of the judgement (HAGB)[2]. These numbers alone demonstrate the topicality and importance of the issue.
The number of decisions of the European Court of Human Rights (ECHR) on the offence of insulting the head of state is quite low. However, in these few judgements, the ECHR has set out clear principles applicable to all forms of government[3]. In the case of the Republic of Turkey, it is observed that the ECtHR has decided on two applications concerning Article 158 of the abrogated TPC No. 765 and only one application concerning Article 299 of the TPC No. 5237. In addition, it should be noted that the principles laid down by the ECtHR in defamation cases against the prime minister or other politicians or in compensation cases brought by the president are very important for our subject.
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The Constitutional Court’s (AYM) first encounter with Article 299 of the TPC was on the occasion of a concrete norm review in 2016. The Constitutional Court examined the article in question in terms of the rule of law, the principle of equality and freedom of expression and unanimously decided that there was no violation of the Constitution[4]. Within the scope of individual application, the Court started to render its first decisions on Article 299 of the TPC as of 2017.
Some of these judgements are related to the right to personal liberty and security, while others are related to the right to freedom of expression. One of the applications filed by persons who were tried and convicted for insulting the President or who were given a HAGB decision was found to be manifestly groundless, while three separate applications were concluded with the determination that the right to freedom of expression was violated.
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The three violation decisions of the Constitutional Court in 2021 seem to be in line with the case-law of the ECtHR. However, there is a significant difference between the decisions of the ECtHR and the Constitutional Court at the principle level. While the ECtHR finds any Criminal Law rule that provides privileged protection to the head of state automatically contravenes the Convention, the Constitutional Court does not find Article 299 of the TPC unconstitutional, and evaluates the individual applications it examines in the light of the criteria to be applied to the conflict between freedom of expression and protection of reputation and reaches a conclusion.
In this article, we will explain and interpret the case-law of the ECtHR and the Constitutional Court regarding the offence of insulting the President, as well as the basic principles and criteria to be applied in cases filed under Article 299 of the TPC.
I. The Offence of Insulting the President in the Case Law of the ECtHR
All the judgements of the ECtHR on the freedom of political expression are generally important in terms of cases of insulting the president. As a matter of fact, before the first judgements on insulting the head of state, the ECtHR has established a very broad jurisprudence on freedom of political expression. The basic principles set out in this jurisprudence naturally also apply to expressions directed at the head of state. Particularly in the case of politicians with primary responsibility for the administration of the state, such as the prime minister or ministers, the principles applied are very similar.
However, some States, including the Republic of Turkey, have special provisions in their laws on insulting heads of state. While examining the applications made by persons sanctioned for insulting a head of state, the ECtHR also evaluates the criminal law norms of the relevant state. Therefore, it would not be wrong to speak of a specific case-law of the ECtHR for the offence of insulting the head of state. In the following sections, the case-law of the IACtHR on the subject will first be presented, and then the basic principles derived from this case-law will be summarised
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