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Home Articles posted by Veronika Bilkova

Thou shalt not Insult the (Foreign) Head of State?

Published on April 28, 2016        Author: 

Earlier this month, a German prosecutor’s office confirmed that it was investigating TV comedian, Jan Böhmermann, for having read on his TV show, Neo Magazin Royal, a poem targeting the Turkish President Erdogan (see here or here). The poem, entitled “Schmähkritik” (“Defamatory”), accused Mr Erdogan of deliberately suppressing minorities such as Kurds and Christians. As the comedian himself admitted, the language used was deliberately offensive- it contained sexually explicit insults against the Turkish president (and was read in front of the Turkish flag and a portrait of Mr. Erdogan).

The Böhmermann Case

The TV show stirred fierce criticism from the Turkish capital of Ankara. The Turkish Embassy in Berlin lodged a formal request with the German Ministry of Foreign Affairs for the prosecution of Mr Böhmermann. The prosecution could take place under Article 103 of the German Criminal Code entitled “Defamation of organs and representatives of foreign states”. This provision reads as follows:

 (1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years.

Pursuant to Article 104a of the German Criminal Code, prosecution of this offence would require the following conditions to be met: the Federal Republic of Germany maintains diplomatic relations with the other state; reciprocity is guaranteed and was guaranteed at the time of the offence; a request to prosecute by the foreign government exists; and the Federal Government authorises the prosecution.

The first three conditions are clearly present in the Böhmermann case – Germany maintains diplomatic relations with Turkey; the combination of Article 125 (Insult) and Article 340 (Offences against the Head of a Foreign State) of the Penal Code of Turkey would allow for the criminal prosecution of persons who insult the German head of state in Turkey; and Turkey has requested the prosecution.

Originally, securing authorisation for the prosecution from the German Federal Government was less than certain. In some previous cases involving the alleged insult of Mr. Erdogan (the NDR Case), authorisation had been denied. In the current case however, the Government, after some initial hesitation, decided to grant it. Thus, the case will go forward alongside a civil lawsuit for defamation filed by Mr. Erdogan himself.

While interesting in itself, the case gives rise to a more general question relating to the level of protection provided to heads of state under current international law. Should heads of state, as is the situation with other public officials, be expected to withstand even harsh political criticism, thus being effectively subject to a lower level of protection than common citizens? Or on the contrary, should heads of state be granted a higher level of protection in so far as they represent the state and could therefore be considered one of its symbols? Read the rest of this entry…