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?
The practice of states is not completely uniform in this respect. Historically, heads of state had various privileges under both national and international law. They enjoyed immunity from criminal and civil jurisdiction; their person, residence and property were inviolable; and they were entitled to special physical protection and to respect for their dignity, both outside and inside their own country (see Arthur Watts´ article on Heads of States in Max Planck Encyclopedia of Public International Law).
The last privilege – respect for dignity – conventionally translated into criminal law provisions prohibiting insults against the head of state. These provisions were often inherited from absolute monarchies in which the head of state was seen as the representative of God on Earth – outrages upon his dignity therefore resembled acts of blasphemy and had to be suppressed with the same vigour. The extension of the special protection to foreign heads of state stemmed from the recognition that a head of state somehow personified a foreign state.
Many states, even inside the Council of Europe area, still have a special offence of the insult or defamation of the head of state in their legal orders. This is the case not only in Germany and Turkey, but also in Belgium, Greece, Italy, the Netherlands, Poland, Portugal or Spain. The offence usually concerns the national head of state but sometimes extends to foreign heads of state (at least of friendly states, as the Dutch provision specifies). It is probably not surprising that a relatively high proportion of the countries on the list are monarchies.
The list does not, however, tell the whole story and it requires two qualifications. First, the number of European countries criminalizing the insult or defamation of the head of state reveals a decreasing tendency. Since the 1990s, countries such as Hungary (1994), the Czech Republic (1998) and, more recently, Belgium (2005 – foreign heads of state), France (2004 – foreign heads of state, 2013 – French president) and Romania (2014) have removed the offence from their legal orders. In fact, while authorising the prosecution of Mr. Böhmermann, German chancellor Angela Merkel indicated that Germany also intends to abolish Article 103 of its Criminal Code. The heads of state – national or foreign – may still be protected under the provisions criminalizing the insult of public officials, but they do not have any special status.
Secondly, countries which have not removed the offence rarely apply it in practice. And if they do, they refrain from imposing harsh sentences such as deprivation of liberty, instead resorting mostly to fines. The cases, moreover, usually relate to serious personal verbal insults or even to non-verbal physical attacks.
Thus, Belgium and Portugal have had no recent incidents of the application of the relevant legislation. In Italy and Spain, the legislation has been applied in only one or two cases over the past 25 years. Poland and the Netherlands reveal more cases but the prosecutions have mostly resulted in either acquittal or a fine.
In Germany, neither Article 103 (Insult of foreign head of state) nor Article 90 (Defamation of the president) of the Criminal Code have been enforced in recent years. Yet, when dealing with Article 90a (Insult of the Federal Republic, its constitutional order and its symbols) in 2000, the German Constitutional Court stated that harsh political criticism, even if unjust, unobjective or stubborn, does not meet the definition of insult (quoted from here). Turkey is an exception to the rule with its number of prosecutions under Article 299 of the Penal Code (Insulting the President) rising steadily over the past few years.
Some national legal acts have been considered by the European Court of Human Rights.
In the 2005 Parkemirli and the 2007 Artun and Güverner and Güzel cases, the Court assessed the Turkish Penal Code. In all three cases, it found a violation of the right to freedom of expression granted by Article 10 of the European Convention on Human Rights. The Court stated that public officials, including heads of state, had to be ready to withstand more extensive public criticism than common citizens, and that a special protection granted to heads of state that would negate the right to inform and express opinions with regard to them, could hardly be seen as compatible with the political conceptions of today.
In the 2002 Colombani and Others case, the Court also found a violation of Article 10, this time with respect to the French regulation on the insult of a foreign head of state (abolished in 2004). The applicants, journalists working for Le Monde, were fined for having insulted the King of Morocco in an article calling into question the King´s determination to combat the increase in hashish trafficking from Morocco. The Court concluded that the restrictions placed on the applicants were disproportionate, noting that:
68. The effect of a prosecution […] is to confer a special legal status on heads of State, shielding them from criticism solely on account of their function or status, irrespective of whether the criticism is warranted. That […] amounts to conferring on foreign heads of State a special privilege that cannot be reconciled with modern practice and political conceptions. Whatever the obvious interest which every State has in maintaining friendly relations based on trust with the leaders of other States, such a privilege exceeds what is necessary for that objective to be attained.
69. Accordingly, the offence of insulting a foreign head of State is liable to inhibit freedom of expression without meeting any “pressing social need” capable of justifying such a restriction. It is the special protection afforded foreign heads of State […] that undermines freedom of expression, not their right to use the standard procedure available to everyone to complain if their honour or reputation has been attacked or they are subjected to insulting remarks.
This short and certainly incomplete survey of the international and national practice indicates that, as the Venice Commission has recently noted in its Opinion on the Penal Code of Turkey (available here), there is “an emerging consensus that states should either decriminalise defamation of the Head of State, or limit 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” (par. 57). Thus, heads of state are expected to withstand political criticism but, the critics should stop short of insulting them personally.
Back to the Böhmermann Case
If applied to the Böhmermann case, this conclusion leaves the German authorities with some space for maneuver (within the margin of appreciation). Yet, the decision is a delicate one.
On the one hand, the German authorities have to take into account not only this “emerging European consensus” but also – in Mrs Merkel´s words – the “sacrosanct nature” of freedom of speech and of the media. Indeed, these freedoms are highly treasured in Germany, as is demonstrated in the outcry that the Böhmermann case has already provoked amongst German broadcasters, publishers and activists. Were the poem targeted against Mr. Gauck, the current president of Germany, there would be a high probability of the case being dropped.
Yet, the poem was about Mr. Erdogan, the president of Turkey. And while Turkey is also party to the European Convention, it has traditionally shown less reluctance in limiting freedom of speech in the interest of protecting from insults, its head of state, public officials and common citizens. Although the poem was read on a German TV station in a German language and therefore, the Turkish view on the issue may seem irrelevant, the German authorities could, and probably should, afford it due consideration. The reasons for this should not be political, i.e. to maintain good relations with Turkey, a crucial partner in the current refugee crisis, or to appease the Turkish minority in Germany; these factors should not interfere with judicial proceedings. Rather, an approach that takes into account the position of all those involved in the case, including the ‘victim’ of the poem, could assist the authorities in striking a fair balance between freedom of expression and the protection of personal dignity.
Mr. Böhmermann did not limit his criticism to the political acts and decisions of Mr. Erdogan but instead, attacked the latter personally using sexually insulting language. Therefore, finding the balance between freedom of expression and the protection of personal dignity, and at the same time reconciling the two national traditions, is by no means a ‘mission impossible’.