OFFENSE OF INSULTING THE PRESIDENT IN THE LIGHT OF IHAM AND AYM DECISIONS

29 Apr OFFENSE OF INSULTING THE PRESIDENT IN THE LIGHT OF IHAM AND AYM DECISIONS

Entry

299 of the Turkish Criminal Code No. 5237. the crime of “insulting the President”, which is regulated in article[1], constitutes one of the most life-threatening freedom of expression problems in recent years. According to the data published by the General Directorate of Judicial Records and Statistics of the Ministry of Justice, in 2014 to 2020, the TCK m.within the scope of 299, 160,169 criminal investigations and 38,428 public cases were opened. 12,281 of these cases resulted in convictions, and 11,193 resulted in a decision to withdraw the disclosure of the verdict (HAGB)[2]. The numbers alone reveal the topicality and importance of the topic.

The number of decisions of the European Court of Human Rights (ECHR) on the offense of insulting the head of state is quite small. However, in these few decisions, the IHAM has established clear and valid principles in terms of all forms of management[3]. From the point of view of the Republic of Turkey; IHAM’s law No. 765 TCK m.two applications related to Article 158, article 5237 of the Turkish Commercial Code.as for 299, it seems that it has decided only one application. In addition, it should be noted that the principles laid down by the IHAM in defamation lawsuits against the prime minister or other politicians or compensation lawsuits filed by the president are very important from the point of view of our topic.

The Constitutional Court of Turkey (AYM)his first encounter with 299 was on the occasion of a concrete norms audit, which he conducted in 2016. The ECTHR examined the article in question in terms of the principle of the rule of law, the principle of equality and freedom of expression and unanimously decided that there was no unconstitutionality[4]. If the court is within the scope of an individual application, the TCK m.it has started to make its first decisions about 299 since 2017. One part of these decisions concerns the freedom and security of the person, and the other part concerns the right to freedom of expression. One of the applications made by people who were tried and convicted for insulting the president or who were given a HAGB decision were clearly found to lack a basis, and three separate applications resulted in a finding that freedom of expression was violated.

As a result, the three violation decisions made by the AYM in 2021 appear to be in accordance with IHAM case law. However, there is a significant difference between IHAM and AYM Decisions at the primary level. While the IHAM automatically finds any Criminal Law rules providing privileged protection to the head of state contrary to the Convention, AYM; TCK m.it does not consider 299 unconstitutional, evaluates the individual applications it examines in the light of the criteria to be applied to the conflict of freedom of expression and protection of reputation and reaches a conclusion.

In this article, he will convey and interpret the IHAM and AYM case law on the offense of insulting the president, as well as the TCK m.we will make explanations about the basic principles that should be taken into account in the cases filed within the scope of 299 and the criteria that should be applied.

I. Offense of Insulting the President in IHAM Case Law

All decisions of the IHAM regarding freedom of political expression are important for defamation cases against the president in general. As a matter of fact, the IHAM has established a fairly broad case law on freedom of political expression before making its first decisions on insulting the head of state. The basic principles established by this case law naturally also apply to statements addressed to the head of state. In particular, in the case of politicians who are primarily responsible for state administration, such as the prime minister or ministers, the principles applied are very similar. However, there are special regulations in the laws of some states, including the Republic of Turkey, Dec insulting heads of state. IHAM also evaluates the criminal law norms of the relevant state when examining applications made by people who have been sanctioned for insulting the head of state. Therefore, it would not be wrong to mention an IHAM case law for insulting the head of state. Below; first, IHAM’s case law on the subject will be transmitted, and then the basic principles arising from this case law will be summarized.

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