Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

ANALYSIS ­| Inciting hatred: "Trending" charge in free speech trials

ANALYSIS ­| Inciting hatred:

Instead of its intended purpose of protecting public peace, Article 216 of the Turkish Penal Code is lately being utilized to punish criticism and protests against the government

 

 

MUSTAFA SÖĞÜTLÜ

 

 

Political interference with the judiciary and the efforts of governments to suppress opposition and strengthen their social domination by using the judiciary is not new in Turkey. However, it is an undeniable fact that recently there has been an increasing intensity in such interferences on an unprecedented level and that the judiciary has gone beyond being open to political interferences and turned into a tool used by the government to “persuade the society to agree with it” and to suppress political opposition.

 

An examination of criminal proceedings initiated in recent years against those who exercise their freedom of expression demonstrates that the use of certain provisions of the Turkish Penal Code (TCK) and the Ant-Terror Law (TMK) is particularly prevalent. Among them, “insulting the president” under TCK Article 299, “membership of an armed organization” under TCK Article 314 and “terrorism propaganda” under Article 7 of TMK are the provisions that first come to mind in this context. Especially in recent months, we have observed that a new article has been added to this list: Article 216 of the TCK, which regulates the crime of "inciting hatred and hostility or degrading the public.”

 

Journalist Hakan Aygün faced this charge during his detention last year over a Twitter post, which, according to a recent judgment by the Constitutional Court, violated his right to liberty and security. Aygün was investigated, detained on remand, and released after spending one month in prison for his tweet that involved a wordplay on the word “IBAN.” Aygün’s trial is still ongoing.

 

Students who participated in Boğaziçi University protests, which began with the appointment of Melih Bulu, who had been involved in political activities of the ruling Justice and Development Party (AKP), as the new rector of the school, have also been charged with TCK Article 216 in a recent indictment and the investigations against them. Hundreds of students and individuals who supported the students were taken into custody, some of them were detained on remand. Judicial control measures, including house arrest, were imposed on some of these people. In the investigation regarding the alleged act of "putting the photo of the Kaaba on the ground" during an exhibition held at Boğaziçi University within the scope of the protests, an indictment was filed against seven students, two of whom have been detained on remand. All seven are charged with “inciting hatred and hostility or degrading the public,” punishable by one to three years in prison.

 

Legal analysis: Elements of the crime and suitability for detention

 

Below we will try to briefly examine the elements of the crime of "inciting hatred and hostility or degrading the public" and its suitability for detention orders in terms of the principles of the rule of law and freedom of expression and freedom of peaceful assembly.

 

This offense is regulated in Article 216 of the Turkish Penal Code No. 5237, which reads as follows:

Article 216 of the TCK- (1) A person who publicly provokes hatred or hostility in one section of the public against another section which has a different characteristic based on social class, race, religion, sect or regional difference, which creates an explicit and imminent danger to public security shall be sentenced to a penalty of imprisonment for a term of one to three years.

(2) A person who publicly degrades a section of the public on grounds of social class, race, religion, sect, gender or regional differences shall be sentenced to a penalty of imprisonment for a term of six months to one year.

(3) A person who publicly degrades the religious values of a section of the public shall be sentenced to a penalty of imprisonment for a term of six months to one year, where the act is capable of disturbing public peace.

 

The article regulates three types of crimes. In the first paragraph a type of crime is defined as "inciting hatred and hostility" while in the second and third paragraphs are about "degrading a segment of the population" and "degrading the religious values adopted by a segment of the population." There are different elements of the crimes set forth in each paragraph. However, all three paragraphs are mainly aimed at protecting public peace.

 

To explain the elements of crimes in a very general and brief way: the perpetrator, who is alleged to have committed the crime of "provoking the public to hatred and hostility" stated in the first paragraph must have the purpose of "provocation." For this crime to occur, this provocation must “create an explicit and imminent danger to public security.”

 

It can be said for the crime defined in the second paragraph that it is aimed to protect public peace as well. In this crime, it is desired to prevent one section of the public from feeling hatred and hostility towards the other. Thus, it is aimed to protect public peace.

 

In order for the crime of degrading religious values in the third paragraph to occur, it is required to be suitable for disturbing public peace.

 

The elements of the crime must be certain in the criminal laws. There shall be no comparison, openness to interpretation, or subjectivity. The crime of "provoking the public to hatred, hostility or degrading” is determined as a concrete danger crime. In other words, a concrete danger should arise with the act, and the prosecution and decision authorities should present the danger concretely and with concrete facts. Today, when we examine the court decisions regarding both detention and verdict, it is seen that the danger is not presented in a concrete way, even in an abstract form, and this is not even needed. The accusation is used to punish criticism of and protest against the government, rather than protecting its purpose and a public value.

 

Although it is clear that a detention measure cannot be imposed for this type of crime, individuals are detained or face home imprisonment on this criminal charge. In terms of the crimes other than those mentioned in the first paragraph, there is a prohibition of detention in terms of the prescribed sentences. According to Article 100/4 of the Code of Criminal Procedure (CMK) No. 5271, a detention cannot be ordered for crimes whose maximum prison sentence does not exceed two years. In addition, in the first paragraph of the same article, it is stipulated that there shall be no decision on detention if it is not proportionate to the importance of the case, expected punishment or security measure. As such, in terms of this type of crime, it is against the law to render a detention decision for the crimes defined in the paragraphs other than the first paragraph. For the type of crime specified in the first paragraph, proportionality will be sought. This proportionality will depend on the level of danger posed by concrete facts. This level should be very intense and open. Today, it is clear that detention decisions based on this criminal charge are against the law.

 

For this crime, judicial control measures are also imposed in accordance with Article 109 of the CMK. The law sets forth that those who are prohibited from detention can be subject to judicial control measures. However, the text of the article clearly states that there must be conditions required for a detention order in order for a judicial control decision to be made. It is indisputable that the judicial control decision must also be proportionate. It is seen in the recent past that judicial control orders in the form of "house arrest" were made instead of an detention order for this crime. It is clear that this type of judicial control in particular is extremely disproportionate and illegal. However, in addition to the fact that the detention and judicial control orders are unlawful in terms of proportionality, these decisions are also against the law, since they violate the freedom of expression and the measures were taken on the grounds that there is strong suspicion before even the elements of the crime of "provoking the public to hatred, hostility or degrading” occur.

 

It is an indisputable fact that the freedom of expression outweighs the protection of public order and that it can be interfered with, if it is necessary in a democratic society and with an aim to protect public peace, and if the disruption of public peace is demonstrated by concrete facts. When the decisions of the European Court of Human Rights (ECtHR) are examined, it is clearly seen that the case-law states that the freedom of expression is essential and that expressions other than calls for violence or statements containing hate speech cannot be interfered with. The ECtHR has repeatedly stated that it is necessary to allow the expression of ideas that do not call or praise violence, but that shock the state, society, and individuals and upset the values of the majority. The rationale on which these decisions are based is simply the requirements of pluralism, tolerance, and open-mindedness; without them there will be no democratic society. Freedom of expression may be intervened in some exceptional cases stipulated in Article 10 of the European Convention on Human Rights; however, these exceptions must be interpreted strictly and the necessity of the restrictions must be convincingly demonstrated. Moreover, it is an obligation for a democratic state to ensure that those in a strong position — the rulers — or the majority of society are tolerant of these shocking expressions.

 

It is the government (state) that will provide legal protection. It is the duty of the state to provide a tolerant society that will prevent imminent danger in the face of statements. Within the framework of pluralist democratic principles, the state must also secure those who do not think in accordance with the norms set by it. It should be ensured that thoughts that do not contain hatred and violence and that are against the general values of the society are also freely expressed.

 

Protection of peace and obligations of the state

 

As mentioned above, the legal value protected in the crime of “provoking the public to hatred, hostility or degrading” is the protection of public peace. However, it cannot be claimed that the elements of this crime are formed on the grounds that public peace is disrupted by every statement that disturbs the society. In this respect, the society must be tolerant in order to ensure public peace. At this point, a positive obligation is imposed on the state. However, today, by doing the opposite, the government is spreading intolerance "for the continuation of its power." Moreover, the segment of society protected in the crime of “provoking the public to hatred, hostility or degrading” is not the ones, who have the opinion and thoughts generally accepted by society. On the contrary, what is protected here is the minority that constitutes the "narrow" segment of society.

 

For example, it has been alleged that the demonstrations, activities or statements of LGBTI+ persons provoke the public to hatred and hostility and publicly degrade religious values. The life preferences and statements of LGBTI+ persons can be seen as either unacceptable or provocative for a large segment of the society. However, it is not this large segment of the society that the democratic state should protect, but LGBTI+ persons and their freedom of expression. What really disrupts public peace is the disregard of a segment of the society and the prevention of their rights and self-expression. What disrupts public peace is not the lives, statements or actions of LGBTI + individuals, but statements, policies, and actions that socially “marginalize” them and violate their rights.

 

In terms of the type of crime examined, the statements and actions of LGBTI+ persons do not constitute the crime of "provoking the public to hatred, hostility or degrading.” These rhetoric can disturb large parts of the society or cause them to take action. However, what causes the deterioration of public peace is not these statements, but the society's "intolerance" to these statements and the imposition of intolerance by the government.

 

Detentions/trials with the allegation of "inciting hatred and hostility or degrading the public” disturb the peace. Those who disrupt the peace are the ones accusing individuals of this crime. Preventing persons from exercising their rights and interfering with their rights constitute the concrete danger mentioned before and disrupts public peace. Denying people their rights to criticize the government, to demonstrate their democratic reaction to the government, to live their sexual orientation and/or gender identity freely are what disturb public peace and provoke the public to hatred and hostility.

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