Article Turkey: Constitutional Court Rules Convictions for Offense of "Insulting the President" Violate Right to Freedom of Expression

Three recent decisions of the Constitutional Court of Turkey holding that convictions under article 299 of the Turkish Penal Code had violated the constitutional right to freedom of expression were published in the Official Gazette in mid-September 2021. The three court cases were Diren Taşkıran, B. No: 2017/26466, 26/5/2021Şaban Sevinç (2), B. No: 2016/36777, 26/5/2021; and Yaşar Gökoğlu, B. No: 2017/6162, 8/6/2021. The cases arose from complaints made to the Constitutional Court by the convicted individuals. Under article 148/3 of the Constitution of Turkey, any person may apply to the Constitutional Court on the grounds that a constitutional right or freedom guaranteed in the European Convention on Human Rights and its protocols has been violated by public authorities. All ordinary remedies must be exhausted before applying to the court. If the court finds that an eligible right was violated, it will order the measures necessary for the violation to be remedied. (Law No. 6216, art. 50(1).) The court will order a retrial if the violation is caused by a judicial decision. (Art. 50(2).)

Background to the Cases

Article 299 of the Turkish Penal Code states:

(1) 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.

(2) (Amended on 29/6/2005 – by Article 35 of Law No. 5377) Where the offense is committed in public, the sentence to be imposed shall be increased by one-sixth.

(3) The initiation of a prosecution for such offense shall be subject to the permission of the Minister of Justice.

The article 299 offense has been the subject of much controversy. The Council of Europe’s Venice Commission, in a 2016 report critical of certain criminal provisions in the Turkish Penal Code and their use by the government, had expressed concern that the article 299 offense was being used extensively to penalize political expression. The commission noted that while the offense of insulting the head of state historically appeared in the penal codes of many European states, there existed a clear tendency and an emerging consensus among European countries to refrain from prosecuting this offense, or decriminalizing it altogether. (Venice Commission report, para. 55.) The commission recommended that Turkey abrogate article 299 and instead use civil actions or the ordinary criminal libel provision that exists in the Turkish Penal Code in extreme cases of defamation. (Para. 75.)

The article 299 offense is prosecuted frequently. A recent report prepared by a member of the main opposition party in the parliament, the CHP, found that between 2014 and 2020, 38,581 actions were brought under the statute, while the number was 1,138 for the 20-year period between 1994 and 2014.

The Constitutional Court’s Decisions

In its decisions, the court explained that any state interference with fundamental rights and freedoms of individuals must be proportional and to address a pressing social need. Therefore, in the context of article 299 prosecutions, a just balance must be struck between the defendant’s right to freedom of expression and the complainant’s personal reputation in order for the interference to be justified. Moreover, even justly balanced interferences must be necessitated by a pressing social need — the court noted that while the trial court has a certain scope of discretion in assessing whether a pressing social need exists to interfere with a right, the use of this discretion is reviewable by the Constitutional Court. The court explained that trial courts must detail their analysis regarding the proportionality of the interference and the existence of the pressing social need in their reasoned opinions, and a judgment convicting the defendant under article 299 where the court’s opinion lacks such analysis would automatically be a violation of the constitutional right to freedom of expression enshrined in article 26 of the Constitution (see, e.g., Şaban Sevinç (2) §§ 36–37).

The court, consolidating and reaffirming factors that it had announced in its previous decisions, explained in Diren Taşkıran § 40 that trial courts should analyze the following criteria in their reasoned opinions:

i.   Whether the allegedly offending statement was a statement of facts, or a value judgment.
[See the European Court of Human Rights (ECtHR) Guide on Article 10 of the European Convention on Human Rights (pp. 38–40) for an overview of the distinction drawn between statements of facts and value judgments in the freedom of expression jurisprudence of the ECtHR, from which the Constitutional Court draws its test.]
ii.  The identity of the person who has made the statement.
iii. The identity of the target of the statement; the degree of notoriety of the target; and whether the limits of acceptable criticism that the target of the statements must tolerate is wider than that for ordinary citizens.

iv.  Whether the statement contributes to debates on matters of public concern, and the relative importance of the rights of the public and other persons that conflict with the statement.
v.   The value of the statement in informing the public, the existence of public interest, and whether the subject matter of the statement is current.
vi.  Whether the complainant had the opportunity to respond to the statement that was directed at him.
vii. The effect of the statement on the person targeted.

viii. Whether the risk of being sanctioned would create a chilling effect [in the enjoyment of the freedom of expression] for the petitioner who has made the statement.

In each of the three cases, the court found that the trial court did not include in its reasoned judgment an analysis that takes account of these criteria, but rather confined the opinion to a finding that the statements exceeded the limits of legitimate criticism and therefore constituted an insult under article 299 of the Penal Code. Accordingly, the court held that the convictions had violated constitutional rights and remanded all three cases for retrials.

Article 299 of the Penal Code has been criticized for, among other things, its purpose, which some detractors of the provision argue has become obsolete as a result of changes made to the role of the president of the republic by constitutional amendments adopted in 2017. Such critics, and the petitioner in Diren Taşkıran¸ argue that the offense was perhaps justifiable in the context of a system where the president of the republic was theoretically a neutral head of state who could not be a member of a political party and was independent of the political leadership of the country, which was headed by the prime minister, who was the head of government. However, the constitutional amendments eliminated the office of prime minister and combined the role of the head of government and head of state in the office of the presidency, and allowed the president to remain a member of his or her political party. According to the argument, in such a system, it is not proper and is even discriminatory to protect the president from insults with harsher penalties than those provided for insults committed by ordinary citizens against each other.

The Constitutional Court has rejected this argument. In Şaban Sevinç (2), the court explained that, although the president as a public personality should tolerate more severe criticism than regular citizens (§ 32), the legislature was acting within its discretion in granting the president a heightened level of protection on the grounds that that an insult directed at the president — who was elected by national popular vote — could be considered as having been directed to the symbolic meaning of the presidency as representing the unity of the nation (Şaban Sevinç (2) § 33.)

Nevertheless, in a recent decision rendered on October 19, 2021, in the case of Vedat Şorli v. Turkey (Application no. 42048/19) — another case in which the defendant was convicted of the article 299 offense — the European Court of Human Rights found Turkey in violation of article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression. The court in its opinion noted that a criminal offense that provides more severe penalties for defamatory statements when they are directed to the president “is, in principle, not in accordance with the spirit of the Convention.” (Vedat Şorli v. Turkey § 43.)

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Turkey: Constitutional Court Rules Convictions for Offense of "Insulting the President" Violate Right to Freedom of Expression
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