Even though the judgment calls for amendment of Article 299, this provision must be completely abrogated, rather than amended

BENAN MOLU

On 19 October 2021, the European Court of Human Rights (ECtHR) issued its long-awaited judgment on Article 299 of the Turkish Criminal Code (TCK), which criminalizes “insulting the president.” In its Vedat Şorli v. Turkey judgment, the Court found that the applicant’s pre-trial detention for two months and two days, his eventual conviction that sentenced him to 11 months and 20 days in prison, and the decision to suspend the delivery of sentence on account of two Facebook posts, which featured a caricature and a photograph of President Recep Tayyip Erdoğan, was in violation of Article 10 of the European Convention on Human Rights, which protects the freedom of expression.[1] The judgment, which was on the same application that had been earlier found inadmissible by the Turkish Constitutional Court on the grounds that the applicant had not substantiated his claims, was signed by all judges, including the Turkish judge, Saadet Yüksel.

Reiterating its case-law on criminalization of insulting the heads of states and recounting the opinions of the Venice Commission and other Council of Europe bodies regarding Article 299, the Court ruled that affording increased protection by means of a special law would not, as a rule, be in keeping with the spirit of the Convention. It also found that a state’s interest in protecting the reputation of its head of state could not serve as justification for affording the head of state privileged status or special protection vis-à-vis the right to convey information and opinions concerning him.

In this regard, the Court found that even symbolic fines would constitute an interference with the exercise of the right to freedom of expression; that such interference would inevitably create a chilling effect on individuals who, like the applicant, were placed in pre-trial detention and convicted; and that the drafting and application of Article 299 was not in keeping with the spirit of the Convention. For the Court, which rarely finds “inconsistency with the spirit of the Convention,” revising the text of the article was the appropriate form of redress making it possible to put an end to the violation found. It therefore ruled that Article 299 should be brought into line with the ECtHR case-law as per Article 46 of the Convention.

In the past, the European Court has issued a number of judgments on articles of the TCK that are most widely used to criminalize and silence opponents of the government and concluded that Article 301 (Taner Akçam v. Turkey), paragraph 6 of Article 220 (Işıkırık v. Turkey), paragraph 7 of Article 220 (İmret v. Turkey and Bakır v. Turkey) and Article 314 (Selahattin Demirtaş v. Turkey [no.2, Grand Chamber]) were vaguely worded and lacked clarity, that they were applied by prosecutors and local courts extensively to a point where there would be no foreseeability as to their consequences, and that, therefore, they did not afford individuals a measure of protection against arbitrary interferences by the public authorities. The Court’s 19 October judgment concerning Article 299 is a continuation of the same finding.

This is because according to the Justice Ministry’s 2020 statistics, a total of 160,169 investigations and 35,507 criminal proceedings have been launched since 2014 on the charge of “insulting the president,” where 38,608 people have been put on trial.[2]

The Constitutional Court is, undoubtedly, one of the main parties responsible for such high number of prosecutions and convictions that result in fines or prison terms. When the Karşıyaka 7th Criminal Court of First Instance and the Istanbul 43rd Criminal Court of First Instance applied to the Constitutional Court maintaining that Article 299 of the TCK was in contravention to the principle of the rule of law (Article 2 of the Constitution) and the principle of equality before the law (Article 10 of the Constitution), the top court merged the two applications and eventually rejected the request for annulment of Article 299, arguing that it was not against the Constitution.[3] Without making a single reference to the well-established case-law of the ECtHR on criminalization of insulting the heads of states, the Constitutional Court maintained in its judgement -- contrary to the opinion of the ECtHR and of the relevant international bodies on the matter --  that the provision which makes prosecutions under Article 299 conditional to prior Justice Ministry permission afforded a measure of protection and found that the prison term of up to four years proportional. It went on to conclude that Article 299 served to protect the reputation of the state as well and ruled, therefore, that the offense of insulting the president should be regulated under a special law, separately from the offense of insulting a public official.[4]

The issue was brought before the Constitutional Court once again when lawyer Umut Kılıç, who had been handed down a deferred prison sentence of 18 months for calling President Erdoğan “a thief and a murderer” during his magistrate interview, filed an individual application with the top court against his sentence. Again, without making a reference to any ECtHR judgments and in contradiction with the case-law of not only the ECtHR but also of itself, the Constitutional Court ruled that the applicant’s claim that his freedom of expression had been violated as a result of his sentence was unfounded.[5]

The Constitutional Court issued its first judgments that found a violation of the Constitution in regard to “insulting the president” in September. In three individual applications where the applicants had been given deferred sentences of 10 months and 11 months and 20 days, the Constitutional Court ruled that the right to freedom of expression had been violated.[6] But in these judgments, the Constitutional Court did not consider whether Article 299 was in line with the Constitution and the ECtHR case-law and whether it met the condition of legality. The applications were concluded on the basis of the principle of necessity in a democratic society instead.

At this point, it would be useful to touch on the issue of “unsubstantiated complaint” that was relied on in the Constitutional Court’s judgment on Vedat Şorli’s application. In a judgment issued in February 2021 regarding the application of Cemal Günsel, the Plenary of the Constitutional Court found the application inadmissible, ruling that it was manifestly ill-founded because the complaint was unsubstantiated.[7] This judgment sets out the principles regarding unsubstantiated complaints. Accordingly, an applicant is required to substantiate their claims of violation, explain the facts of the case and present their evidence before they can get the Constitutional Court to review the merits of their case and whether the justifications offered by the public authorities are relevant and sufficient. Therefore, in situations where the claims of violation are abstract and the applicant fails to fulfill their obligation to explain the facts of the case, as well as which fundamental rights and freedoms have been violated and on what grounds, it would be concluded that the applicant failed to substantiate their claims.

However, the application that was found inadmissible by the Constitutional Court, citing the grounds mentioned above, was found admissible by the ECtHR and resulted in a judgment finding a violation of the Convention. Several months ago, in another application that was found inadmissible by the Constitutional Court on the grounds that its claims were unsubstantiated, namely the case of Melike v. Turkey, the ECtHR ruled that the dismissal of a public servant for a post she liked on Facebook violated freedom of expression.[8] These two applications found inadmissible by the Constitutional Court were both found admissible by the ECtHR, which also held that these two cases violated the Convention. They constitute the latest examples of how much the gap between the case-law of the Constitutional Court and the ECtHR has widened in terms of applications claiming violations of the right to liberty and security and freedom of expression.[9]

All these examples show that had the Constitutional Court annulled this provision back in 2016 or rendered a judgment finding a violation in accordance with both the ECtHR case-law as well as its own case-law, it could have prevented so many arbitrary rights violations that followed. At this point, following the Şorli v. Turkey judgment, there are three steps Turkey needs to take: Avoiding initiating new criminal investigations under Article 299 of the TCK; where relevant, issuing dismissal/acquittal/right violation judgments in ongoing investigations and prosecutions; and amending Article 299 of the TCK in compliance with the case-law of the ECtHR in accordance with Article 46 of the Convention, titled “binding force of judgments.”

The Şorli v. Turkey judgment is not yet final. When it does become final,[10] the execution of this judgment will be supervised by the Committee of Ministers of the Council of Europe. The provision on “insulting the president” has long been on the agenda of the Committee of Ministers, which has been supervising provisions of the TCK and the Anti-Terror Law (TMK) that restrict the exercising of freedom of expression. At its meeting held on 7-9 June 2021, the Committee of Ministers stated that various judgments in relation to the problem of the disproportionate application of criminal laws against people who expressed critical or unfavorable opinions have been pending before the Committee for over 20 years, and that the prosecutors and the lower courts continued to apply criminal laws without due regard for freedom of expression despite exemplary judgments rendered by the higher courts, in particular the Constitutional Court, and that the authorities have been avoiding delivering political messages to ensure the protection of freedom of expression.[11]

At the same meeting, the Committee also stressed that Turkey had failed to take measures to remedy the violations resulting from the application of Article 125 and Article 299 of TCK that set out the charges of “insulting a public official” and “insulting the president,” respectively, and that Article 299 of TCK was interpreted and applied in an unprecedentedly broad manner in comparison with similar provisions in other member states of the Council of Europe, as suggested by the Commissioner for Human Rights and the Venice Commission, and called on Turkey to amend Article 125 and to annul Article 299 in compliance with the European consensus towards the decriminalization of insulting heads of state and the case-law of the ECtHR.

Therefore, it is not difficult to make a guess about the stance the Committee of Ministers will adopt during their supervision of the execution of the Şorli v. Turkey judgment. However, even though the ECtHR called for an amendment to Article 299 of the TCK, what needs to be sought is rather the annulment of this provision, because as stated in previous decisions of the Committee, amendments to certain provisions of the Turkish Penal Code and the Anti-Terror Law that do not introduce a difference in the wording or the application of a provision, such as “Expressions of opinion that do not exceed the boundaries of giving information or criticism do not constitute an offense,” have fallen short of preventing the abuse of criminal laws or individuals from being subjected to judicial harassment -- with the added resistance by courts against implementing ECtHR judgments.

Since “limiting 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 is insufficient,” as stressed by both the Venice Commission and the Council of Europe Commissioner for Human Rights,[12] and taking into account the case-law of the ECtHR, which stipulates that Heads of State cannot be afforded privileged status or special protection based on their function or status, and the European consensus on decriminalizing defamation of heads of state, this provision that is incompatible with the spirit of the Convention should be completely abrogated.

[1] Vedat Şorli v. Turkey, no. 42048/19, 19.10.2021. There are at least five more applications before the ECtHR that have been notified to the government regarding prison sentences delivered on the basis of Article 299 of the TCK: http://hudoc.echr.coe.int/eng?i=001-206544; http://hudoc.echr.coe.int/eng?i=001-205783; http://hudoc.echr.coe.int/eng?i=001-209998; http://hudoc.echr.coe.int/eng?i=001-209615; http://hudoc.echr.coe.int/eng?i=001-209617.

[2] “Erdoğan'ın 'yok' dediği davaları Bakanlığın istatistikleri yalanladı”, 29.09.2021, https://bianet.org/bianet/hukuk/251048-erdogan-in-yok-dedigi-davalari-bakanligin-istatistikleri-yalanladi

[3] Docket no: 2016/25, Judgment no: 2016/186, 14.12.2016. http://www.resmigazete.gov.tr/eskiler/2017/01/20170103-11.pdf. For detailed information on Article 299 of the TCK, see Benan Molu, Freedom of Expression and Turkey: Implementation of ECtHR Judgments, 2020, https://www.expressioninterrupted.com/uploader/uploader/report-on-turkey-s-implementation-of-ecthr-judgments-2020-pdf p. 19-24.

[4] Aforementioned judgment, para. 13, 14, 16, 21.

[5] Umut Kılıç application, Application no. 2015/16643, 04.04.2018.

[6] Diren Taşkıran Application, no. 2017/26466, 26.05.2021; Yaşar Gökoğlu Application, no. 2017/6162, 08.06.2021; Şaban Sevinç Application (2), no. 2016/36777, 26.05.2021.

[7] Cemal Günsel Application, Plenary, no. 2016/12900, 21.01.2021.

[8] Selma Melike v. Turkey, no. 35786/19, 15.06.2021. http://hudoc.echr.coe.int/eng?i=001-210417

[9] For similar examples, see Mehmet Altan v. Turkey, Şahin Alpay v. Turkey, Osman Kavala v. Turkey, Selahattin Demirtaş v. Turkey (no. 2) [BD], Sabuncu and Others v. Turkey (except Kadri Gürsel and Turhan Günay), Ahmet Şık v. Turkey, Atilla Taş v. Turkey, Ahmet Hüsrev Altan v. Turkey, Murat Aksoy v. Turkey, Öğreten and Kanaat v. Turkey, Bulaç v. Turkey, Akgün v. Turkey.

[10] A judgment becomes final if the applicant(s) or the respondent State declares that they do not request a referral to the Grand Chamber or if a judgment is not referred to the Grand Chamber within three months of its issuing. If any of the parties request a referral of a Chamber judgment to the Grand Chamber within three months of the judgment and the panel of the Grand Chamber rejects the referral request, the judgment becomes final. If the panel accepts the request, the judgment to be rendered by the Grand Chamber is final.

[11] Benan Molu, Council of Europe: End the abuse of criminal laws and amend Articles 220, 299 and 301, 29.06.2021, https://www.expressioninterrupted.com/council-of-europe-end-the-abuse-of-criminal-laws-and-amend-articles-220-299-and-301/

[12] Venice Commission Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey, 11-12.03.2016, https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)002-e, para. 49-75 and 126; Commissioner for Human Rights of the Council of Europe, Memorandum on freedom of expression and media freedom in Turkey, 15.02.2017, https://rm.coe.int/ref/CommDH(2017)5, para. 55.