The Constitution of Turkey contains a catalogue of rights and duties of the individual (Articles 17-40). This catalogue includes, inter alia, the freedom of communication (Article 22), freedom of religion and conscience (Article 24), freedom of thought and opinion (Article 25), freedom of expression and dissemination of thought (Article 26), freedom of the press (Article 28), freedom of association (Article 33) and the right to hold meetings and demonstration marches (Article 34).

Penal Code of Turkey

The present Penal Code of Turkey (Law No. 5237) was adopted by the Turkish Grand National Assembly (“the National Assembly”) on 26 September 2004 and entered into force on 1 June 2005. Full text of the Penal Code of Turkey with more than 340 provisions has been translated into English by Professor Dr. Vahit Bıçak and published in 2006 by Seçkin publishing.

Implementation

The use of insult laws in Turkey is widespread, and on the rise. Employing judicial means to suppress freedom of expression and the press is a growing concern over such practices. One might state that judicial measures seem to be applied against critical voices disproportionately.

“Strategic Lawsuits Against Public Participation” (SLAPP) have becoming more common, in which the wealthy and powerful try to prevent criticism by using existing legal rules and judicial system via insult claims. Rather than winning the case, the aim of SLAPPs is to intimidate the defendants and to deter others critics through the threat of exhausting resources and time. Considering the crucial contributions of acedemia, legal and media professionals and organizations to public debate, practices such as SLAPPS pose a serious threat to freedom of expression.

In Turkey, insult charges filed under Art. 299 or other insult charges filed by wealthy business owners, local politicians and other public figures under Art. 125 could be easily classified as SLAPPS, since many lack sufficient basis and evidence.

In particular, the lengthy trial procedures in Turkey – comprising of the first instance court, regional appeal court, Supreme Court of Appeals, and, if applicable, the Constitutional Court and the European Court of Human Rights (ECHR), as well as possible retrials – could lead to professionals’ being exposed to duress, both materially and psychologically. The acquittal alone would not remedy the damages, pecuniary or non-pecuniary, that the party experienced or the time that has been lost.

Relevant Provisions

Article 125, 126, 127, 127, 128, 129, 130 and 131

The Turkish Criminal Code (TCC) regulates the offense of “insult” under several articles, which foresees a punishment of a monetary fine or up to two years in prison. Accordinly, any person who attributes an act, or fact, to a person in a manner that may impugn that person’s honour, dignity or prestige, or attacks someone’s honour, dignity or prestige by swearing is sentenced to a penalty of imprisonment for a term of three months to two years or a judicial fine. To be culpable for an insult made in the absence of the victim, the act should be committed in the presence of at least three further people. Where the act is committed by means of an oral, written or visual medium message, addressing the victim, the same penalty stated in the above is imposed.

Insulting public officer

Where the insult is committed: (a) against a public officer due to the performance of his public duty, (b) because of declaring, altering or disseminating, his religious, political, social or philosophical beliefs, thoughts, or convictions, or practising in accordance with the requirements and prohibitions of a religion he belongs to; or (c) where the subject matter is deemed sacred to the religion the person belongs to, the penalty to be imposed may not be less than one year.

Where the insult is committed in public, the penalty to be imposed is increased by one sixth. Where an insult is made which arises from the duties of public officials who are working as a committee, the offence is deemed to have been committed against the all members of that committee. In these circumstances the provisions of the article concerning successive offences (art 43) is applied.

Where, during the commission of the offence of insult, the name of the victim is not explicitly mentioned but there is no doubt that the insult was aimed at the victim or where the accusation is unclear but there is no doubt as to its character, then it is assumed that both his name was mentioned and the insult was expressed.

Proof of the Accusation

Where an accusation, the subject matter of which constitutes a criminal offence of insult, is proven, the person do nor receive any penalty. The accusation is assumed to be proven upon the finalisation of a guilty verdict against the insulted person concerning such accusation. Otherwise, where there is an application to prove the accusation is true the acceptance of such will depend upon whether there is a public interest to determine whether the accusation is true or whether the complainant consents to the process of proving the accusation. Where a person is insulted by referring to an act which has been proven, there will be a penalty.  

Immunity of Accusation and Defence

Where an accusation, or negative remark, is made against a person within the context of written or verbal allegations, or defences, before a judicial or administrative authority, no penalty is imposed. However, it is a requirement that the accusation or remark is based upon actual and real facts and is material to the dispute.

Insulting on Account of an Unjust Act or Reciprocal Insult

Where the insult is committed as a response to a civil tort, a penalty is reduced by up to one third (or not imoposed at all). Where the offence is committed in response to an intentional injury, no penalty is imposed. Where an insult is committed reciprocally, depending upon the nature of the case, the penalty to be imposed on both of them, or one of them, may be reduced by up to one third (or not imposed at all).

Insulting the Memory of a Dead Person

Any person who, in the presence of at least three persons, commits the offence of insult to the memory of a dead person is sentenced to a penalty of imprisonment for a term of three months to two years, or a judicial fine.  If the offence of insult is committed publicly the penalty is increased by one sixth. Any person who removes, fully or partially, or makes insulting statements about, the body or bones of a person, is sentenced to a penalty of imprisonment for a term of three months to two years.

Conditions for Investigation and Prosecution of insult

Excluding those offences committed against a public officer on account of his duty, the investigation and prosecution of an offence of insult is subject to the filing of a complaint by the victim. If the victim dies before filing the complaint, or if the offence is committed against the memory of a deceased person, a complaint may be filed by the ascendants or  descendants of the deceased (up to the second degree) or by his spouse or siblings.

Insulting the President

The crime of “insulting the president” is separated out under Article 299 of Turkish Criminal Code and carries a higher sentence of up to four years in prison. In other words, the law on insulting the president carries a jail sentence of between one and four years. Where the offence is committed in public, the sentence to be imposed is increased by one sixth. The initiation of a prosecution for such offence is subject to the permission of the Minister of Justice.

Tens of thousands have been charged and sentenced over the crime of insulting the current president of Turkey, Recep Tayyip Erdogan in the seven years since he moved from being prime minister to president. In 2020, 31,297 investigations were launched in relation to the charge, 7,790 cases were filed, and 3,325 resulted in convictions, according to the Turkish Justice Ministry data. Those numbers were slightly lower than the previous year. Since 2014, the year Erdoğan became president, 160,169 investigations have been launched over insulting the president, 35,507 cases were filed and there were 12,881 convictions. These figures Show that there is a widened practice of court cases for alleged insult against the President being launched against academics, journalists, writers, social media users and other members of the public, which may end in prison sentences, suspended sentences or punitive fines.

Conferring a special protection to Heads of State, shielding them from criticism solely on account of their function or status, cannot be reconciled with modern practice and political conceptions. The developments in Europe indicate that there is an emerging consensus that states should either decriminalise defamation of the Head of State, or limit this offence to the most serious forms of verbal attacks against heads of States while at the same time restricting the range of sanctions to those not involving imprisonment.

Insulting Flags, Symbols and Representatives of Foreign States

The Turkish Criminal Code also addresses the insulting of foreign flags and symbols of foreign states (Article 341). Accordingly, any person who publicly defames an officially flying flag of a foreign state or other symbol of its sovereignty is sentenced to a penalty of imprisonment for a term of three months to one year. The commencement of an investigation and prosecution for this offence is subject to a complaint by the relevant state.

Any person who is a temporary or permanent representative of a foreign state in Turkey, or is part of such person’s diplomatic staff or a person representing an international institution (and their staff) who has diplomatic privileges and immunity is considered as if they were public officers in relation to any offence committed against them as a result of their duty, and any person who commits such an offence is subject to a penalty according to the relevant provisions of the Turkish Criminal Code. Where the offence committed is insult, the commencement of an investigation and prosecution is subject to victim’s complaint.

The application of the provisions related to insulting flags, symbols and representatives of foreign states depends on a reciprocal application in the related country.

International and European Human Rights Standards

Turkey is obligated to create a favourable environment for freedom of expression and press to be exercised effectively and to not subject right holders to unjustified interference. Therefore, the state must eliminate and remedy all practices that run counter to freedom of expression.

Freedom of Expression

Turkey is a State party to all major international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Freedom of expression is guaranteed by Article 19 of the Universal Declaration of Human Rights, Article 19 ICCPR and Article 10 ECHR. However, the exercise of the right to freedom of expression may be subject to restrictions. Such restrictions have to meet the requirements foreseen in Article 10(2) ECHR and in subparagraphs (a) and (b) of paragraph 3 of Article 19 ICCPR.

Legality

The restriction has to be “prescribed by law” (Art. 10(2) ECHR and 19(3) ICCPR). The Law has to be adequately accessible and foreseeable, i.e. “formulated with sufficient precision to enable the citizen to regulate his conduct”. There must be “a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention”

Legitimacy

The restriction has to pursue a legitimate aim. The exhaustive list of such legitimate aims is provided in Article 10(2) ECHR and 19(3) ICCPR.

Necessity in a democratic society

The restriction has to respond to “a clear, pressing and specific social need” and be “proportionate to the legitimate aim pursued”.

Case-law

The European Court of Human Rights and the UN Human Rights Committee have a very rich case-law on the interpretation and application of Article 10 ECHR and Article 19 ICCPR respectively. In this context, the ECtHR has repeatedly assessed the provisions related to insult of the Penal Code of Turkey.

In the 1976 Strasbourg case Handyside v United Kingdom, the European Court of Human Rights provided guidance on the scope of Article 10, confirming that it protects the right to say things that “offend, shock or disturb the State or any sector of the population”. One should note that the ability of citizens to critique their government without fear of reprisal is essential to democracy.

Legal harassment

Notably, there is a need for the repeal of all criminal insult laws due to the ease with which they can be abused.

One might observe that there is a highly dangerous trend of using the judiciary to put the society under intense pressure. Cases which lack sufficient reasoning and justification demonstrate the arbitrary, yet systematic, nature of the ongoing legal harassment against many segments of society in Turkey. This systematic intimidation causes entellectuals to be affected, both mentally and financially, thereby leading to expand existing practice of self-censorship.

© Att. Prof. Dr. Vahit Bıçak