Informants fuel steep rise in Turkish 'insulting president' cases, lawyers say

ISTANBUL - Insulting the president of Turkey has always been a crime, but the number of legal cases has increased markedly to tens of thousands a year since Recep Tayyip Erdogan was elected in 2014.

In the latest in the string of cases, the Istanbul Public Prosecutor’s Office launched investigations earlier this month into two prominent actors, following media reports about their remarks on a television talk show on the opposition Halk TV channel.

During the broadcast, Metin Akpinar, 77, said Turkey needed to be more democratic and if that wasn’t achieved peacefully, "maybe leaders could be hung from their feet or poisoned in cellars".

Mujdat Gezen, 75, in the same programme said that no one should dare to question his patriotism, including Erdogan.

Erdogan responded by describing Akpinar and Gezen as “trash” who would be brought to account by the judiciary.

When a public prosecutor was examining the messages on the person’s mobile phone, he noticed the conversation on the WhatsApp group... my client was arrested on charges of insulting the president

- Lawyer

The next morning, on Monday 24 December, police officers turned up at the actors' houses and both men attended a courthouse to give statements to a prosecutor before being released by a judge.

The pair, who face investigation on suspicion of both insulting the president and calling for a coup, are now required to report weekly to a police station and are banned from leaving the country while the case is pending.

Two days before the actors’ cases, the Ankara Public Prosecutor’s Office asked parliament to strip nine members of parliament of their immunity. Some of them, if their immunity from prosecution is removed, will stand trial for “insulting the president”.

The request means there are now more than 60 serving MPs for whom prosecutors have sought the removal of their parliamentary immunity for allegedly insulting Erdogan.

Removing the immunity of a deputy in the 600-seat Turkish Grand National Assembly requires a legal procedure and it is not anticipated that deputies for the main opposition Republican People's Party (CHP) will lose their immunity.

However, another deputy, Ahmet Yildirim from the Peoples’ Democratic Party (HDP), was stripped of his seat in February for “insulting the president”. He had called Erdogan a “sultan in the palace”. 

He is the first parliamentarian in Turkey to have been stripped of his seat as a consequence of the law.

More than 66,000 investigations so far

Between 2014 and 2017, since Erdogan was elected, there have been 66,691 investigations filed for the crime of “insulting the president", according to Yaman Akdeniz, a law professor at Istanbul Bilgi University, who based the figures on Turkish judiciary statistics.

Of these, 20,539 cases were filed in 2017, and three-quarters of them went to court, Akdeniz said.

The crime carries a prison sentence of up to four years, according to Article 299 of the Turkish Penal Code.

Duvar, an online news outlet known for being critical of the government, runs news stories on such cases with the same headline: “Today in insulting the president”, in which it chronicles lawsuits filed against citizens for "insulting the president".

What is Article 299? 

Article 299 of the Turkish Penal Code provides for criminal liability for insults against the President of the Republic. The provision reads as follows:

(1) Any person who insults the President of the Republic shall be sentenced to a penalty of imprisonment for a term of one to four years

(2) Where the offence is committed in public, the sentence to be imposed shall be increased by one sixth

(3) The initiation of a prosecution for such offence shall be subject to the permission of the Minister of Justice

Article 299 does not define what constitutes insulting the president. But Article 125 defines the offence of insult as "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".

One man who was questioned by public prosecutors this year on suspicion of insulting the president told Middle East Eye that his case was based on posts on his Facebook account. He denies writing the posts and says they were posted by somebody who had gained access to his account.

“It seems that someone took a screenshot and I think complained about me. I was on a bus travelling with my mother from one city to another,” said the 25-year-old receptionist from Istanbul.

“Police stopped the bus and asked for everyone’s ID. It was a general security control, not one especially for me. When they saw my name was among the list of wanted persons, they got me off the bus and handcuffed me.

“I stayed in detention one night. They told me that if I call a lawyer, my proceedings would take longer. Then I appeared before a public prosecutor. I told him that someone that I had met on the internet had learnt by password and published those posts.

“He [the prosecutor] asked if I was a member of any organisation. He asked several questions about it. Then they released me.”

He said he was now more wary about using social media or discussing politics as a result of his case.

"They haven't told me yet if there will be a legal case against me or whether this would be put on criminal record and affect my future. I no longer use Facebook so frequently, and, of course, I don’t post anything political."

Human Rights Watch criticism

The law of insulting the president has been criticised by international human rights and media freedom monitors, including Human Rights Watch, which on 17 October reiterated its appeal for Turkey to stop prosecutions under the law which it describes as a blatant violation of freedom of expression.

The Venice Commission, the advisory body of the Council of Europe, noted in a 2016 report that most anti-free speech prosecutions in the 1980s and 1990s related to insulting Mustafa Kemal Ataturk, the founder of the Turkish Republic; “Turkishness”, which in a 2008 change to the penal code was amended to the "the Turkish nation"; or questioning the unity of the country.

In recent years, it said, these had been replaced by prosecutions for insulting religion and the president.

The same report underlined that the offence of insulting the head of state appears in the penal codes of various European countries, but said the tendency in most countries was to refrain from applying the law.

In Turkey, that trend has been reversed, it noted.

“Insulting the president of Turkey has always been a crime, but the number has splashed,” Kerem Altiparmak, a former academic working on human rights and who recently resigned from teaching at a law faculty, told MEE.

“Even when Kenan Evren [the head of the military council of the 1980 coup] became president in 1982 the number of the court cases for insulting the president was not this high."

During Ahmet Necdet Sezer’s term from 2000 to 2007, there had been between four and 15 cases a year, Altiparmak said. This had risen to about 100 cases a year under Abdullah Gul, Erdogan’s predecessor and Justice and Development Party (AKP) colleague from 2007 to 2014.

'Not just bad words'

Erdogan, who had served as prime minister for the ruling Justice and Development Party (AKP) since 2003, became president in 2014 as a result of changes to the constitution which meant that the country's head of state was chosen in a popular vote, rather than by MPs, for the first time. 

While the role of the president until then had largely been ceremonial, Erdogan's party oversaw further changes to the constitution approved in a referendum in 2017 which bolstered the executive powers of the presidency.

The crime of insulting the president was upheld by Turkey's Constitutional Court in December 2016, a few months after a coup attempt against Erdogan. The court ruled that the president was deemed to represent the Turkish nation and its unity, and that therefore an insult against the person who held the office was more than a personal insult.

He said that the lack of a precise definition of what constituted an act of insulting the president also meant that it could be interpreted broadly by law enforcement and judiciary officials.

“It is not just using bad words, swearing or defaming. The scope of it is very wide,” he said.

During a concert in Istanbul on 5 August, 2016, the singer Zuhal Olcay added Erdogan’s name to the lyrics of a song called "I have given up on this world", and allegedly made an obscene gesture with her hand, leading her to get 10 months in jail earlier this year.

Court experts had to watch her concert recording for hours to decide whether or not it was an insult. An appeal in the case is pending.

Cartoons have been deemed to be insulting, too. In June, four university students were arrested and jailed for carrying a banner of a cartoon depicting Erdogan among a variety of different animals at their graduation ceremony in Ankara.

The students were later released after Erdogan’s lawyers withdrew their complaint against the students.

But Erdogan did not forgive 72 deputies of the main opposition Republican People’s Party (CHP), who shared a tweet by their leader Kemal Kilicdaroglu asking Erdogan to tolerate the cartoon after the arrest of the students. He tweeted the same cartoon that the students were carrying.

Ahmet Sever, a spokesperson for Abdullah Gul, Erdogan's predecessor as president, was also charged with insulting the presidency over comments in which he claimed that in order to keep Erdogan in power "a system based on oppression was established and the system had informants everywhere".

This sentence, according to prosecutors, was tantamount to insulting the president.

'Citizen informants'

Lawyers say that one reason for the growing number of cases has been an increase in the number of complaints made by members of the public, including in some cases against members of their own families.

Baran Dogan, a lawyer in Istanbul, told MEE that “informant citizens” were frequently cited as sources in cases against his clients.

“A citizen could be speaking in a cafe, saying something against the president, and someone there thinks this is an insult, so he files a complaint or writes an email to the Presidential Office,” said Dogan.

“In some cases, people who have personal disputes or hold grudges against someone file complaints against them. Then the investigation starts and, even if there are no official charges, it usually takes six to 18 months to reach a conclusion.

In some cases, people who have personal disputes or hold grudges against someone file complaints against them. Then the investigation starts and, even if there are no official charges, it usually takes six to 18 months to reach a conclusion

- Baran Dogan, lawyer

“You might end up getting arrested. So the citizens getting accused of insulting the president get stressed. Even if the investigation isn’t turning into a court case, the stress is enough. Then you can open a court case against the people who slandered you,” he said.

In Turkey, there is a department within the presidential communications office to which citizens can send emails about any issues that concerns them - including alleged Article 299 complaints.

According to information given to parliament by Vice President Fuat Oktay, between January and mid-October, almost 2.8 million complaints were filed.

Both Akdeniz and Altiparmak said that informants were one of three main sources of “insulting the president” proceedings, and both agreed that many of these involved instances of slander against the person accused.

“On Facebook almost everybody has friends that are actually not known to them. One of them could file a complaint against you for a post of yours with the claim that you insulted the president,” said Altiparmak.

WhatsApp messages examined

The other two sources of complaints, according to both lawyers, are Erdogan's personal legal team and public prosecutors in charge of press issues.

Article 299 says that if the crime of insulting the president is committed publicly the punishment will be increased by one-sixth of the total punishment.

Prosecutors argue that even if the number of your followers is limited, your social media accounts are considered a part of the press. In Turkey, online media outlets are widespread, but their journalists are denied press cards. 

But to get charged or even arrested for such a crime, you don’t necessarily have to post something on your Facebook page, or to be reported by an informant.

This has nothing to do with the rule of law. This this regulation and its implementation have turned into tools of intimidation policies

- Yaman Akdeniz, law professor

Another lawyer, who spoke to MEE on condition of remaining anonymous to protect his client, said the client had been arrested because of messages posted in a WhatsApp group between three people.

"One of them had been detained for a separate crime. When a public prosecutor was examining the messages on the person’s mobile phone, he noticed the conversation on the WhatsApp group," the lawyer said.

"The original issue did not turn into a court case, but my client was arrested on charges of insulting the president [in the WhatsApp messages]."

Altiparmak mentioned a similar case. He said it had involved police seizing the computer of a person to investigate another separate crime.

"They had noticed an alleged insult to the president in a document, and without investigating if this document was shared or not, they opened a lawsuit against this person."

The person was eventually acquitted, he said.

'Intimidation policies'

Both Altiparmak and Akdeniz told MEE that they believed the increase in the number of Article 299 reported cases was to do with the way in which the law was being enforced, rather than due to an increase in bad-mouthing the president.

“I am talking to you as a jurist. This has nothing to do with the rule of law. This regulation and its implementation have turned into tools of intimidation policies,” said Akdeniz.

Altiparmak said the issue of the rise in the number of insult cases had been overlooked because of other, more pressing human rights concerns.

"Not every person who has an investigation against them for insulting the president is detained or sentenced to prison, but this regulation is in use for oppression," he said.

While Turkey's penal code also includes provision for punishing people who insult other citizens, Altiparmak said that those cases were increasingly being settled in civil courts, rather than through criminal proceedings.

He also cited a ruling by the European Court of Human Rights earlier this year relating to the cases of two Spanish men who were convicted of insulting the Spanish crown after burning photographs of the country's king in 2007.

The ECHR said this year that the conviction violated the men's right to free expression and ruled that the act of burning the king's image was justifiable political criticism of the state that the monarch symbolised.

“In a civilised world, insult is not the subject of penal courts, but civil courts, regardless of who was insulted. In Turkey, in some cases of insult claims, you might be directed to the civil courts," he said.

"But it is different with the president. Insulting him has a special place... which is primarily against one of the basic rules of human rights, which sees everyone as equal."