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

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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?

National Practice

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.

International Practice

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’.

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Ralph says

April 28, 2016

"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’."

Disagreed. Mr Böhmermann played with criticism under the veil of "this would be a clear insult". That's what makes the case so difficult. Besides that, it is about time to question the concept of honour in general and that of states in particular (see, unfortunately in German)

Zeynep Elibol says

April 28, 2016

Many thanks for the post, which is also informative on similar laws that have been rarely used and/or abolished in different European countries. In the Böhmermann case, while striking a balance between the freedom of expression and the protection of personal dignity, it would be misleading to look solely into the wording of the poem. Not only the content of the poem, but also its context should be taken into account. In the relevant episode, Böhmermann was explicitly referring to the limits of the freedom of expression laid down by the German Constitutional Court and giving this poem as an example of expression falling out of the limits, with involving no real criticism but basically gibberish that rhymed. He gave this provoking example to criticize the harsh reaction of Turkey towards the "Erdowie-Erdowo-Erdoğan" song broadcasted on NDR during the TV Show Extra 3 (which involved real criticism with content relevant to the president's acts) and the reluctance of the German government to defend the producer's freedom of expression. The tricky question is whether putting these alleged insults into such context are to save him from being convicted.

Jordan says

April 28, 2016

We in the US prefer that truth is a defense and that with respect to public officials that there must be malice.
Human rights to speech have their limitations, but look how they can be abused!

Tim says

April 28, 2016

Indeed, the article fails to mention the most important aspect: the clear intention behind the recital and the circumstances thereof. The poem was preceded by a much more harmless report in the German TV show Extra 3, after which Mr Erdogan summoned the German ambassador to Turkey. Mr Boehmermann then presented in his TV show where the line of free speech and defamation/libel lies in German law by means of reciting an intentionally hurtful poem, which is so absurdly exaggerated and childish that it cannot by any means be taken seriously (also when evaluating the poem legally you kind of need to print it as well as the report leading up to the recital...). That the intention behind it was not for the poem to be taken seriously is crystal clear when viewing the show.
The message behind it is just as clear: this is the line between defamation and free speech in Germany, the Extra 3 report did not cross it and we will withstand any encroachment on free speech and free society by a foreign head of state. The show of Mr Boehmermann is a clear case of freedom of speech and art and the case will under no circumstances end with Mr Boehmermann being convicted.

Tobias Thienel says

April 29, 2016

With apologies for being a pedant as well as a German lawyer, it is not entirely accurate to say that President Erdoğan has brought a 'civil lawsuit for defamation'. As far as I know and as far as has been widely reported in Germany, he has lodged a criminal complaint (Strafantrag) in his private capacity, in addition to the official request for prosecution lodged by the Turkish government. That is to say, he is now relying on the special offence under Article 103 of the Criminal Code and on the general offence under Article 185 of the Criminal Code (insult). His criminal complaint in the latter respect is not even, as far as I know, a private criminal prosecution (which is also possible), but rather a request for the public prosecutor to bring an indictment under Article 185 (which cannot succeed separately in addition to an indictment under Article 103, but the complaint was lodged prior to the authorisation of the federal government in relation to Article 103).

More relevantly to this blog, I would suggest that the question in international law is not only whether there is a widespread practice in criminalising or decriminalising offences against the honour of foreign heads of states. This, of course, goes to the question whether there is a duty incumbent on states in general international law to protect the honour of foreign heads of state from libels and defamation by private persons. But in addition to this question, there is a valid question as to the extent and limits of such a duty, if any exists.

On both questions, I believe the judgment of Lawrence Collins LJ - surely an authority in international law - in Aziz v. Aziz and HM The Sultan of Brunei [2007] EWCA Civ 712, [2008] 2 All ER 501, available online at, merits some attention. This was an appeal concerning an application by the Sultan of Brunei for the redaction of judgments in certain cases involving his ex-wife. The Sultan relied on a right in international law (and in a British statute) to have his dignity respected or protected.

The Court of Appeal dismissed the Sultan's appeal against the dismissal of his application in the High Court. Lawrence Collins LJ (as he then was) held that 'outside physical attack or interference, the material in relation to the prevention of offensive conduct supports the view that to the extent there is any uniform practice (which is doubtful) it amounts to no more than courtesy or comity' (para. 89). The principle of open justice, which the common law and the ECHR hold dear, prevailed.

This directly goes to my first question, the question of the existence of any rule of international law. In this respect, the judgment also cites Oppenheim (9th ed. Jennings and Watts) and Sir Arthur Watts as doubting whether, in addition to a rule requiring state agents to respect the dignity of a foreign state, there was also a rule requiring the suppression of offensive conduct by private persons (paras. 66, 71).

But the judgment also contains a good deal of material on the limits of the protection of a foreign head of state's dignity. Sir Arthur Watts is cited as saying that states may have to reconcile any foreign request for prosecution with their traditions and constitutional guarantees of free speech. States are also said to have 'a considerable margin of appreciation' (para. 71, quoting Watts). A judge of the Federal Court of Australia is quoted as saying 'the sending State takes the receiving State as it finds it'. There is a good deal more to similar effect in the judgment of Lawrence Collins LJ.

Clearly, my two points are linked. If states have a considerable margin of appreciation, and if their own constitutional and other traditions have a role to play, it becomes rather more difficult to argue that there is an underlying rule of international law. If there was a rule of international law, one would expect its limits to be a matter of international law, as well, not a matter of unilateral discretion. Granted, this is not a fully conclusive argument, because there are harder and softer rules of international law, and some rules of international law in fact do little more than require some exercise of discretion. However, a large measure of discretion in my view does make the 'fundamentally norm-creating character' of a rule rather more difficult to establish. In the field of the protection of the honour of a foreign head of state from private libel and defamation, this appears to be a very hard case to make out.

The Böhmermann affair may mean that a German court will soon consider these matters, because the existence of any rule of international law favouring prosecution would presumably play a role in striking the appropriate balance between freedom of expression and the public interest. In any event, I would argue that Chancellor Merkel's brief invocation of an international legal duty to respect the dignity of a foreign head of state (her wording escapes me)rings somewhat hollow. The Chancellor may be under such a duty, but it is quite doubtful whether this extends to a duty to authorise the prosecution of a citizen.

Ralph says

May 5, 2016

excellent comment, that could be a blogpost of its own