Turkey’s president Recep Tayyip Erdoğan demands that comedian Jan Böhmermann be prosecuted under Germany’s own laws criminalising insult to foreign heads of state because he has read out an offensive poem. The existence of this law has clearly taken Chancellor Angela Merkel and the German judiciary by surprise, but Merkel sees that she has no option but to act on the request. Sara Whyatt explains the case and puts it in a European perspective.
By Sara Whyatt
Ten years ago, in the midst of the furore around the prosecution of internationally acclaimed writers Orhan Pamuk and Elif Shafak, both accused of “insult to Turkishness”, the Turkish government confronted the European Union (EU). It asked: how could its member states complain about the prosecutions when they themselves had similar laws?
PEN International, which was spearheading the campaign for the writers’ trials to be dismissed, took note and warned the EU that these defunct laws should be repealed. There was a danger that in the future they could be dug out of the vaults and dusted off for use against EU citizens. What was not predicted was that a decade later a EU member state – in this case Germany – would be forced to apply one of its own laws against one of its own citizens under orders from Turkey.
Turkish writers under siege
Through 2005 and 2006, Orhan Pamuk and Elif Shafak were enduring separate cases of “insult to Turkishness” under Turkey’s notorious Article 301. Pamuk was accused of speaking in an interview to a Swiss newspaper about the mass killings of Kurds and Armenians in the 1900s. For Shafak, it was remarks made by a fictional character in her bestseller ‘The Bastard of Istanbul’ that brought her to trial. Their cases led to widespread protests; local and international activists campaigned vociferously on their behalf; observers crowded courtrooms; and European and global institutions issued protests.
Turkey’s response to the outrage was to turn on the EU, accusing it of hypocrisy. Government lawyers had identified at least three EU member states who had similar laws on their statute books, laws that made it illegal to “defame” the state, state organs, and symbols. Turkey’s survey of EU member states’ legal frameworks on defamation seemed to ask the question: Should not the EU clean up its own act before accusing others?
Old laws ‘a silent threat’
PEN International decided to investigate these claims. Working with the pro bono support of the international law firm, Clifford Chance, it set about to see if they were true. And they were. The study, ‘Insult Laws in the EU: A Silent Threat’ published in 2007, found five EU countries that had laws that specifically penalised people for defamation of the nation, its symbols and/or its flags: Germany, Poland, the Netherlands, France and Italy. These, and several more member states, also had laws that made it an offence to insult their own heads of states, members of government, the armed forces and other officials.
But these laws were rarely, if ever used. Some, such as those in France, were drawn up in the 19th century; most had not been applied for decades; and none had resulted in a prison sentence – at least not in recent history. They were certainly not applied with the same, to quote from PEN’s paper, “enthusiasm and rigour” as they were in Turkey. But, PEN warned, there was no room for complacency, saying that “even where these laws are not actually enforced, they remain a silent threat”.
Escalating number of defamation cases
The cases against Pamuk and Shafak eventually ended with their acquittal. The terrible murder in January 2007 of Hrant Dink, an Armenian-Turkish editor, also on trial under Article 301, forced a re-think and minor revision to the law. Time went on with new waves of arrests under other legislation that scooped up other writers, journalists, artists and academics.
The situation escalated after the 2013 Gezi protests as President Erdoğan feverishly pursued his critics, launching hundreds, if not thousands, defamation cases. Rights monitors watched with increasing alarm as freedom of expression spiralled into a downward trend, exemplified by the forced closures of newspapers, blocking of websites and an increasingly hostile climate to free speech.
Erdoğan unearths Germany’s hidden law
Yet few outside Turkey feared that they were within reach of its repression. There was no inkling that President Erdoğan could order another EU state to prosecute one of their own citizens for “insulting” him in their own country.
Erdoğan’s demand that comedian Jan Böhmermann be prosecuted under Germany’s own laws criminalising insult to foreign heads of state – Article 103 – has clearly taken Chancellor Angela Merkel and the German judiciary by surprise. But the law exists and Merkel sees that she has no option but to act on the request. The hope is that the German courts will not convict, and it is more than likely that as a result this law will be repealed. So some good could come in the long run.
Meanwhile, another person faces possible prosecution.
On 23 April 2016, Bruno Kramm, chair of the Pirate Party in Germany, read out a line from Böhermann’s poem at a demonstration against the decision to prosecute the comedian. Despite police orders that the protest could only go ahead if the poem was not read out, Kramm took the opportunity to make what he calls a literary critique of the poem, explaining in an interview broadcast on Russia Today that he wanted to point out the highly sexist and racist elements of the poem, while at the same time agreeing with its criticism of the Turkish government’s repression of minorities.
He read out the line: “Kicking Kurds, beating Christians”, then found himself arrested by police. He was held for 45 minutes, then freed, and was told that he too could be prosecuted under Article 103. Kramm awaits what will come next.
The incident had other EU governments frantically digging out their own law books. The Netherlands instantly moved to scrap Article 118 of its criminal code that makes it an offence to “intentionally insult” the head of a friendly nation – leaving one to wonder whether the Dutch can freely lambast heads of unfriendly states, thus begging the question of how one defines a “friendly” and “unfriendly” state.
Where else could Erdogan’s busy litigation team reach in Europe? They have four other options: Poland, Italy, Greece and Switzerland.
Poland is the state that has most recently used its law protecting foreign leaders from insult. In 2003 the publisher of a magazine was fined under Penal Code Article 136 for mocking Pope John Paul II’s age and frailty during his visit to the country in 2002. Then in 2005 one of 28 activists who protested against President Putin during an official visit to Auschwitz-Birkenau was charged under the same article, although there is no news on what became of this case.
In both Greece, where foreign heads of state are protected from denigration, and Italy, where insulting a foreign state’s flag is an offence – but only where there is reciprocal protection of the Italian flag, thus somewhat limiting its application – the laws have apparently lain dormant for decades.
And so too in Switzerland; until a few days after Angela Merkel bowed to Turkey’s request to prosecute Böhmermann. On 25 April 2016 the shadow of Swiss Penal Code Article 296 that provides up to three years in prison for insulting a foreign head of state fell upon Turkish-Armenian photographer Demir Sönmez. The Turkish Consulate in Bern filed a complaint against Sönmez’s photograph taken in Turkey of a banner showing the portrait of a child, Berkin Elvan, who had been killed by a teargas canister fired during the 2013 Gezi protests, with a caption that implicates Erdoğan in his death. The photo was part of a display outside the UN complex. In this case, the Geneva vice-mayor has refused to comply, citing the right to freedom of expression, staving off any action for the time being at least.
An urgent need for reform
As English PEN’s Jo Glanville wrote recently, there is clearly an urgent need for reform: 23 of the 28 EU member states have criminal defamation laws of some sort, including ten that penalise insults to these nations’ heads of states and their national emblems.
Most surprising is Germany’s extraordinarily high criminal defamation prosecutions. The International Press Institute’s 2015 report on criminal defamation in Europe cites 22,000 cases of defamation prosecutions in Germany, over 1,000 of which led to prison sentences in one year alone.
Like it or not, Turkey has revealed the EU’s free expression weak spot for what it is. We can just hope that this experience will teach states not to let sleeping laws lie, or risk that they may rise up and bite when least expected, and from the most unwanted sources.
Sara Whyatt is a consultant with many years of human rights advocacy including leading PEN International’s global freedom of expression program. www.sarawhyattconsultancy.com
Photo above: Jan Böhmermann in Rostock 2014. Source: Wikipedia, Creative Commons BY-SA 3.0
» Newsweek – 26 April 2016:
Why Europe urgently needs to reform its criminal defamation laws
» Foreign Policy – 25 April 2016:
Turkey to Geneva: No you can’t insult Erdoğan either
» Russia Today (via YouTube) – 23 April 2016:
‘They took me like a criminal’ – Head of Berlin Pirate Party arrested for quoting Erdogan satire
» The Independent – 22 April 2016:
The Netherlands to abandon law against insulting foreign heads of state
» The Guardian – 15 April 2016:
Merkel lets comedian face prosecution for Erdoğan poem
» International Press Institute – 15 September 2015:
IPI special investigation: The application of criminal defamation laws in Europe
» PEN International – October 2007:
Insult laws in the European Union: A Silent Threat (PDF)
» NBC News – 25 January 2005:
Polish publisher punished for poke at pope
» Freemuse.org – 29 April 2016:
Germany: Turkey attempts to stop EU funding orchestra performance
» Artsfreedom.org – 20 April 2016:
Turkey: Baby donkeys, insults and presidents
» Artsfreedom.org – 18 April 2016:
Germany: Comedian faces potential prosecution for criticising Turkish president
» Freemuse.org – 22 February 2016:
Art Under Threat: Attacks on artistic freedom in 2015
» Artsfreedom.org – 12 November 2015:
Turkey: EU and UN address Turkey’s troublesome arts freedom record