The right of freedom of speech in Turkey

“Turkey: Freedom of expression in jeopardy”. So was entitled the report-article published in March 2018, which was co-authored by Istanbul Bilgi University lecturer Yaman Akdeniz and Ankara University lecturer Kerem Altiparmak.[1] The report, the title of which is rather accurately chosen, generally evaluates the numerous recent oppressions, accusations and condemnations against journalists, students, intellectuals after the revolution on July 15, 2016. The authors indicate that the main reason to interfere the freedom of expression mentioned by  the state is fighting against terrorism before the revolution attempt and mainly after it. For the considerable part of the submitted accusations and judgements the matter was the Article 299  of Criminal legislation of the Republic of Turkey, that is “Insulting the president”. In this analysis, we will discuss the mentioned Article about the restriction of freedom of speech and will particularly talk about the increase in numbers of judicial cases on this matter during Recep Tayyip Erdoğan’s leadership.

The freedom of speech and Turkey

Turkey has always been one of the most restrictive countries concerning media freedom and freedom of expression in the  Council of Europe. Of a total of 20657 judgements issued by the European Court of Human Rights (ECHR) between 1959 and 2017, Turkey was involved in 3386 judgements as a respondent state ranking the first place in the list of all the member states. Of a total of 700 judgements in which the ECHR has found a violation according to Article 10 of European Convention on Human Rights, Turkey ranks the first with 281 judgements.[2]

Perhaps the fourth estate relates to restriction of freedom of speech the most. Turkey doesn’t also leave the first place in the list of the countries who have imprisoned journalists in the last years. According to the January 4, 2020 report of “The Economist”, Turkey is the second in this list conceding only China until December 1, 2019. While “The Economist” talks about 47 imprisoned journalists, the Independent journalists’ association (Özgür Gazeteciler İnisiyatifi) mentions 130 journalists and Turkey’s Trade Union talks about 108.[3] Especially after 2016, Turkey has gained a reputation of a unsafe country for journalists. By “To be a member of a terrorist organization”, “Canceling accreditation”, “Insulting the president” and matters like these have lately been the causes that many representers of foreign media working in Turkey were imprisoned and exiled.[4] 

Turkish government’s persistent control over the media has also been proceeded under Justice and Development Party’s power. Perhaps alongside with many such cases (when the authoritative media didn’t allow the coverage of undesired cases), the most vivid one was the demonstration of a film about penguins by the prominent CNN Türk during the critical moment of repressions on protestants and citizens at 2013 Gezi park protests. European Commissioner Štefan Füle called such attitude towards the protests ‘deafening silence of Turkish media’.[5]

In Turkey, along with the penetration of the Internet, the Internet censorship and the blocking of sites were spreaded by the Committee on Information and Communication Technology (Bilgi Teknolojileri ve İletişim Kurumu), the Government,  the Department of Telecommunication, Postal services adjacent to the latter (Telekomünikasyon İletişim Başkanlığı) and the courts during the last decade. Since 2008 Youtube, Twitter, Vimeo and MySpace have been blocked for many times. And only on January 15, 2020 the block of Wikipedia (since April, 2017) was lifted.

“Insulting the president” in Turkish Criminal legislation 

The Article 299 of 5327 Criminal legislation, accepted by Ahmet Necdet Sezer ruling in the 2005s, has the epigram “Insulting the president” (Cumhurbaşkanına hakaret). The epigram consists of the following points

  1. One is sentenced to imprisonment for 1-4 years if he or she insulted the President of the Republic.

2.If the offence was committed in public, the penalty  strictens to 1/6 extent.

3.To start the criminal chasing connected to this offence, the permission of the Minister of Justice is needed.[6]

By special judicial matters, the defence of the president has very deep roots. In Ancient Rome, the emperors considered any offence against them to be an offence against the country by uniting with the country for abolishing the tendencies of republican order[7]. In essence, the Article 299 continues existing as a remnant of the imperial leadership. And the fact, that the Article 299 is regulated under the “Offences against the Symbols of the State Sovereignty and the Reputation of Institutions” (Devletin Egemenlik Alametlerine ve Organlarının Saygılığına Karşı Suçlar) and not next to the Article under the title of “Offences against dignity” (Șerefe karşi suçlar) in the “Insult” (Hakaret) of the 125th chapter, says that the legislator considered  Insulting the President in the Penal Code as a crime against the State.

And there is a question. What can be considered an insult according to this Article? Can the words “thief” and “tyrant” with which, by the way, a lot of judicial cases are open, really be estimated as insults against the president and not be a strict criticism against the government and its president?

In the declaration on Freedom of political debates in media, adopted by the Committee of Ministers of the Council of Europe on February 12, 2004, it is stressed that the criticism of the political officials, the state leaders and politicians is one of the most important preconditions in democracy.[8] This document completely corresopends the approach of ECHR to this article. Particularly, by ECHR’s decision about Pakdemirli/Turkey in 2005,  ECHR’s motive of demonstrating journalist Bekir Coşkun’s insult to the president as a way of expressing freedom of speech in 2015 can be seen. And on October 14, 2016, in the report 858/2016 of Venice Commission the following is said; ”Because of too much usage the Article 299 (Insulting the President of the Republic) has to be completely removed”.

After the publishing of the report of Venice Commission, impetuous discussions were made in Turkey. In 2016, on this background, the Minister of Justice of Turkey, Bekir Bozdağ said the following in his speech; “At present, there are 47 member states in the Council of Europe. The phrase ‘Insulting the President of the Republic is considered an offence’ exists almost in all the states”. In other words, the existence of the Article 299 and the restrictions of freedom of speech were justified by referring to the presence of the Article in other European states. However we have to observe that changes are happening in European states concerning this Article. And the usage of this Article is rare in the mentioned states. But in Turkey, the frequent usage of this Article is remarkable.

Recep Tayyip Erdoğan as the leader who has used the Article 299 the most 

During 1986-2018, 13889 suspects were charged by the Article 299.  During the 7th President Kenan Evren’s leadership the amount of accusations was 340, during Turgut Özal’s leadership it was 207, during Süleyman Demirel’s leadership it was 158, during Ahmet Necdet Sezer’s leadership it was 163. During the period of Abdullah Gül’s leadership the amount increased by 420% and  reached 848 accusations.

The amount of defendants by the Article 299 on Turkish Criminal Legislation. Source- Doğruluk Payı:

Perhaps it’s visible from the diagram that Erdoğan is the Turkish leader who has used the Article the most. By this Article, the amount of accusations exceeded the previous one by 19.5 times forming 17406 cases during the first years of Erdoğan’s leadership. [12] For insulting Erdoğan numerous deputies, journalists, caricaturists, artists and ordinary citizens were seated in the defendant’s chair. The reason for the accusations are public speeches, humorous posts on social networks, caricatures concerning Erdoğan. By the Article 299, the president of the Nationalist Movement Party, Devlet Bahçeli, the former co-presidents of the Peoples’ Democratic Party Selahattin Demirtaş and Figen Yüksekdağ, PDP’s deputy Ahmet Yildirim, Armenian deputy of Turkish parliament Garo Paylan and other politicians were charged. In these terms, the amount of judgement cases on the “Republican Party’s president Kemal Kılıçdaroğlu was record-breaking. Kemal Kılıçdaroğlu has historically been the politician who was seated in the defendant’s chair the most and paid compensation of money to Erdoğan the most. Only in the last 8 years, 15 judgements were made against Kılıçdaroğlu, and he was compelled to pay 1 million Lira compensation to Erdoğan.[13] On July 17, 2018, for posting the famous caricature named ‘Tayyip kingdom’ on Twitter, Erdoğan filed a lawsuit against Kılıçdaroğlu and other 72 deputies from his party.[14] Adjacent to the caricature, Kılıçdaroğlu wrote “You can’t avoid criticism and humour by jailing people. You have to tolerate it!” 

We must remind that on March 11, 2016 Karsiyaka’s 7th and on March 26 Istanbul’s 43rd First advisory boards of Criminal Court approached to the Turkey Constitutional Court demanding to recognize the Article 299 anti-constitutional, because it contradicts the  Article 2 about the “Characteristics of the Republic”, the Article 10 about “Equality of Law” and the Article 39 about the “Proof of Law” in Constitution. The Constitution Court examined the lawsuit at session on December 14, 2016 and rejected it saying that the President of the Republic is not only an individual but also the one representer of Turkey and its people, therefore to insult him means to insult the country.[15]

However we must take into consideration the circumstance that Erdoğan is simultaneously the president of the ruling Justice and Development Party, its first person and first symbol, the main figure representing this political power and the main character  in its campaigns (it was the same during the elections of Local Safe Government System). Therefore, as a president, being protected by this law can be an enchaining circumstance for oppressions and it can create unequal conditions.

In our opinion, the loss of power of the Article seems rather unrealistic as we have already spotted that the president Erdoğan is the Turkish politician who has used the Article the most (this certainly has a psychological component) and Kılıçdaroğlu’s calls of tolerating criticism have remained ineffective.

To sum up, we must prove that Turkey is the country that stands out with the restriction of freedom of speech, informational control and censorship all over the world nowadays. By the example of the Article 299 of Turkish Constitution, we intended to show you that the authorities accept any criticism with a great difficulty and try to gag dissents. This analysis allows to conclude that the present president of Turkey Recep Tayyip Erdoğan is the leader who subjects the statements against him to censorship and is protected  judicially  the most. While a lot of intellectuals, lawyers, ordinary citizens and international Human Rights organizations realize the necessity of fighting against the Article 299, no way of fighting against the usage of the Article has been effective yet.

  1. Վահրամ Տեր-Մաթևոսյան/ «Զանգվածային լրատվամիջոցները Թուրքիայում. քաղաքականություն, սահմանափակումներ և մարտահրավերներ»/ Արևելագիտության հարցեր 10-րդ հատոր/ ԵՊՀ/ 2015/ Էջ 97-137
  2. Yaman Akdeniz, Kerem Altıparmak/ “Turkey: freedom of expression in  jeopardy”/ PEN International/ 2018 /p. 4
  3. Türk Ceza kanunu/5237 sayılı/2004/ 299. Madde
  4. Özge Demir/ “Uygulamada Cumhurbaşkanına hakaret suçu ve ilgili mevzuat”/ 2017
  5. Fatma Sümer/ “Ifade Özgürlüğü Ve İtibarın Arasında Cumhurbaşkanına Hakaret Suçu”/ SETA Analiz/ 2018/ sayı 229
  6. Özge Demir/ “Yeni Rejimde Cumhurbaşkanına Hakaret Suçuna Yönelik Eleştirel Bir İnceleme”/ Hakemli Makale/ Suç ve Ceza 2018/ sayı 3
  7. “Medyada siyasi tartışma Özgürlüğü bildirisi”/ Avrupa Konseyi Bakanlar Komitesi/2004/ Türkçe çevri
  8. Venedik Komisyonu’nun 14/10/16 tarihli ve 858/2016 sayılı rapor
  9. Yaman Akdeniz, Kerem Altıparmak/ “Turkey: freedom of expression in jeopardy”/ PEN International/ 2018

  1. https://www.dogrulukpayi.com/bulten/cumhurbaskanina-hakaret-kanunu
  2. https://www.google.com/amp/s/barandogan.av.tr/blog/ceza-hukuku/cumhurbaskanina-hakaret-sucu-cezasi-nedir.html
  3. https://www.google.com/amp/s/amp.dw.com/tr/cumhurba%25C5%259Fkan%25C4%25B1na-hakaret-davalar%25C4%25B1nda-rekor-art%25C4%25B1%25C5%259F/a-46622702
  4. https://m.dw.com/tr/aym-cumhurba%C5%9Fkan%C4%B1na-hakeret-su%C3%A7unun-iptalini-reddetti/a-36768090
  5. https://m.dw.com/tr/erdo%C4%9Fana-hakaret-su%C3%A7undan-3658-ki%C5%9Fiye-dava/a-39476792
  6. https://m.dw.com/tr/tutuklu-gazeteci-say%C4%B1s%C4%B1nda-t%C3%BCrkiye-%C3%BC%C3%A7%C3%BCnc%C3%BC-s%C4%B1rada/a-46780288
  7. https://m.dw.com/tr/cpj-en-fazla-tutuklu-gazeteci-t%C3%BCrkiyede/a-46714898
  8. https://m.dw.com/tr/erdo%C4%9Fana-hakaret-davalar%C4%B1-2-bine-yakla%C5%9Ft%C4%B1/a-19089106
  9. https://m.bianet.org/bianet/ifade-ozgurlugu/209331-kac-kisi-cumhurbaskanina-hakaretten-cezaevinde
  10. https://www.evrensel.net/amp/312490/cumhurbaskanina-hakaret-davalari-raporlastirildi
  11. https://m.dw.com/tr/birg%C3%BCn-yazar%C4%B1na-dava-i%C3%A7inde-davadan-hapis-cezas%C4%B1/a-50396819
  12. https://m.dw.com/tr/eski-alman-vekile-erdo%C4%9Fana-hakaretten-dava/a-50365790
  13. https://m.dw.com/tr/b%C3%B6hmermann%C4%B1n-erdo%C4%9Fan-%C5%9Fiiri-hakk%C4%B1nda-yeni-mahkeme-karar%C4%B1/a-49837232
  14. https://m.dw.com/tr/canan-kaftanc%C4%B1o%C4%9Flu-yeniden-h%C3%A2kim-kar%C5%9F%C4%B1s%C4%B1nda/a-50322512
  15. https://m.dw.com/tr/yeni-t%C3%BCrkiyenin-ilk-se%C3%A7imleri-cumhurba%C5%9Fkan%C4%B1-muhalefete-kar%C5%9F%C4%B1/a-47934214
  16. https://m.dw.com/tr/gazeteci-h%C3%BCsn%C3%BC-mahalli-tutukland%C4%B1/a-36788359
  17. https://m.dw.com/tr/t%C3%BCrkiyede-31-mart-%C3%B6ncesi-medyan%C4%B1n-ba%C4%9F%C4%B1ms%C4%B1zl%C4%B1%C4%9F%C4%B1-tart%C4%B1%C5%9Fmas%C4%B1/a-47825457
  18. https://m.dw.com/tr/t%C3%BCrkiye-gazeteciler-i%C3%A7in-korku-%C3%BClkesi-oldu/a-1921443
  19. https://www.takvim.com.tr/guncel/2018/07/18/baskan-erdogan-kilicdaroglu-ve-72-chpli-vekil-hakkinda-suc-duyurusunda-bulundu
  20. https://m.irazek.am/hy/news/6728
  21. https://orbeli.am/hy/post/96/2019-01-09/%D4%BB%D5%9E%D5%B6%D5%B9+%D5%A1%D6%80%D5%AA%D5%A5+%D5%B4%D5%A5%D5%AF+%C2%AB%D5%A2%D5%BC%D5%B6%D5%A1%D5%BA%D5%A5%D5%BF%D5%A8%C2%BB
  22. Caricature link  https://www.google.com/search?q=tayyipler+alemi++kilicdaroglu+Takvim&tbm=isch&ved=2ahUKEwiItLbNg9HoAhXOXZoKHc2aBEsQ2-cCegQIABAA&oq=tayyipler+alemi++kilicdaroglu+Takvim&gs_lcp=CgNpbWcQA1CSuwZY8cwGYPfOBmgAcAB4AYAB3QGIAakIkgEFMS40LjKYAQCgAQGqAQtnd3Mtd2l6LWltZw&sclient=img&ei=UqyJXojDHc676QTNtZLYBA&bih=657&biw=1366#imgrc=Qs39ZhTrEv24vM

[1]“Türkiyede ifade özgürlüğü can çekişiyor”/DW Türkçe/ Burcu Karakaş/ 28.03.18https://www.dw.com/tr/pen-raporu-t%C3%BCrkiyede-ifade-%C3%B6zg%C3%BCrl%C3%BC%C4%9F%C3%BC-can-%C3%A7eki%C5%9Fiyor/a-43173904

[2] Yaman Akdeniz, Kerem Altıparmak/ “Turkey: freedom of expression in  jeopardy”/ PEN International/ 2018 /p. 4

[3]The Economist: Tutuklu gazeteci sayısında Türkiye ikinci/ Gazete Duvar/04.01.2020 https://www.gazeteduvar.com.tr/gundem/2020/01/04/the-economist-tutuklu-gazeteci-sayisinda-turkiye-ikinci/

[4] Tükiye gazeteciler için korku ülkesi oldu/DW Turkçe/Aram Ekin Duran/ 26.04.2016

[5] See speech by Commissioner Š.Füle during the ”Speak-ap!2: Loud wake up call for improving  media freedom in Western Balkans and Turkey” conference

https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_13_558

[6] Türk Ceza kanunu/5237 sayılı/2004/ 299. Madde.

[7]Özge Demir/”Yeni rejimde Cumhurbaşkanına hakaret suçuna yönelik bir incelem”/ Hakemli makale/ 2018/s. 54

[8]“Medyada siyasi tartışma Özgürlüğü bildirisi”/ Avrupa Konseyi Bakanlar Komitesi/2004/ Türkçe çevri

http://www.hsk.gov.tr/Eklentiler/Dosyalar/f20fbc23-8676-4066-9213-3f0b00798adf.pdf.

[9]Ankara Mahkemesi, Bekir Coşkun Bireysel Başvuru Kararı, No:2014/12151, Karar Tarihi:04/06/2015

http://kararlaryeni.anayasa.gov.tr/BireyselKarar/Content/e9014968-b510-48f4-b80887726a1add8d?wordsOnly=False

[10] Venedik Komisyonu’nun 14/10/16 tarihli ve 858/2016 sayılı rapor için bkz.

https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.ihop.org.tr/wp-content/uploads/2016/11/Venedik-Komisyonu-Yasama-Dokunulmazl%25C4%25B1%25C4%259F%25C4%25B1-G%25C3%25B6r%25C3%25BC%25C5%259F%25C3%25BC.pdf&ved=2ahUKEwiJ89rE-Y7nAhUJqIsKHUBmDE0QFjAAegQIARAB&usg=AOvVaw1rhVz9CHVlwkOohu4or-l3

[11]“Cumhurbaşkanına hakaretten kaç kişi sanık oldu?”/Doğruluk Payı/Emincan Yüksel/22.01.2019

https://www.dogrulukpayi.com/bulten/2018-yilinda-cumhurbaskanina-hakaretten-kac-kisi-sanik-oldu

[12] Ibid.

[13]«Ի՞նչ արժե մեկ բռնապետը»/Օրբելի վերլուծական կենտրոն/ Նարինե Թադևոսյան/2019-01-09

https://orbeli.am/hy/post/96/2019-01-09/%D4%BB%D5%9E%D5%B6%D5%B9+%D5%A1%D6%80%D5%AA%D5%A5+%D5%B4%D5%A5%D5%AF+%C2%AB%D5%A2%D5%BC%D5%B6%D5%A1%D5%BA%D5%A5%D5%BF%D5%A8%C2%BB

[14]“Başkan Erdoğan , Kılıçdaroğlu ve 72 CHP-‘li vekil hakkında suç duyurusunda bulundu”/ Takvim gazetesi/18.07.2018

https://www.takvim.com.tr/guncel/2018/07/18/baskan-erdogan-kilicdaroglu-ve-72-chpli-vekil-hakkinda-suc-duyurusunda-bulundu

[15]«Ի՞նչ արժե մեկ բռնապետը»/Օրբելի վերլուծական կենտրոն/ Նարինե Թադևոսյան/2019-01-09

https://orbeli.am/hy/post/96/2019-01-09/%D4%BB%D5%9E%D5%B6%D5%B9+%D5%A1%D6%80%D5%AA%D5%A5+%D5%B4%D5%A5%D5%AF+%C2%AB%D5%A2%D5%BC%D5%B6%D5%A1%D5%BA%D5%A5%D5%BF%D5%A8%C2%BB


Author: Anahit Karapetyan            © All rights reserved.

Translator: Jemma Khachatryan

LEAVE A REPLY

Please enter your comment!
Please enter your name here