Constitutionality Review

The Contested Provision

The first paragraph of the impugned provision provides for that anyone insulting the President of the Republic shall be sentenced to imprisonment for a term from one year to four years. The second paragraph thereof sets out that in cases when this offence is committed publicly, the sentence to be imposed shall be increased by one sixth. The third paragraph envisages that the prosecution to be conducted on account of this offence shall depend on the permission of the Minister of Justice.

Grounds for the Request for Annulment

In the applications lodged with the Constitutional Court, it has been maintained in brief that the sentence which is envisaged for the offence of insulting the President of the Republic is severer than the sentence which is generally set forth and envisaged for the offences of insulting the public officers; that although there must be a single legal arrangement with respect to the offences of insult towards the public officers, making different arrangement is in breach of the principle of equality. It has been further asserted that the provision does not clearly set out whether the general principles with respect to the offence of insult would be applied or not; that in a state of law, it is not possible to form a type of offence specific to a position; that existence of law which provides a special safeguard for the head of the State is in breach of the European Convention on Human Rights; and that “the right to prove”, which is set out in the Constitution without any exceptions, is not set forth with respect to the offence of insulting the President of the Republic. It has been accordingly alleged that the impugned provision is in breach of Articles 2, 10 and 39 of the Constitution.

The Constitutional Court’s Assessment

In brief, the Constitutional Court has made the following assessments:

Given the fact that the President of the Republic represents the unity of the Republic of Turkey and the Turkish Nation as the Head of the State, his powers and duties enshrined in the Constitution and the values represented by him, it is acknowledged that the offence of insulting the President of the Republic is not only committed towards his own personality but also contravenes the values and functions represented by the President. Taking into account these issues and considering that the act committed towards the personality of the President must be deemed, at the same time, to be one of the offences committed towards the State, the legislator distinguished this offence - even if committed towards the personality of the President - from the offence of insulting the public officers and formulated it as a separate offence. Accordingly, the offence of insulting the President of the Republic is not set forth in the part of the Turkish Criminal Code no. 5237 (“the TCC”) entitled “Offences against Dignity” but in the third section entitled “Offences against the Symbols of State Sovereignty and the Reputation of its Organs” of the forth chapter entitled “Offences against the Nation and the State and Final Provisions”. This preference of the legislator falls within the scope of its discretionary power in determining to which types and amounts of criminal sanctions the acts defined as an offence would be subject.

By this provision, it is aimed to prevent and punish the attacks towards the dignity of the State through the President of the Republic, who is the Head of and represents the State. In this respect, there is no contradiction with the principles of the state of law and of equality in respect of the legislator for distinguishing the offence of insulting the President of the Republic from the other offences of insult and making a special legal arrangement in respect thereof by taking into consideration the legal interest aimed to be protected with the impugned provision, the nature of offence and the outcome to take place. Furthermore, it cannot be concluded that the impugned provision is ambiguous on the ground that the criminal act, the lower and upper limits of the sentence to be imposed, the circumstances when there would be an increase in the sentence, rates of the increase are clearly specified therein.

Moreover, the impugned provision is necessary for attaining the aim pursued in its arrangement, and the sentence envisaged for this offence is practicable and proportionate to attain this aim given the legal interest protected. The rate of increase to be made in the sentence, in case when the offence prescribed in the provision is committed publicly, is efficient and proportionate for the prevention of the offence. In addition, in determination of the basic sentence, the judge may take into account the factors listed in Article 61 of the TCC such as the manner in which the offence was committed, the means used to commit the offence, the time and place when and where the offence was committed, the significance and value of the subject of the offence, the gravity of damage or danger and etc., and thereby the sentence may be individualized. Furthermore, the sentence imposed may be converted into a fine, delayed or pronouncement of the judgment may be suspended.

On the other hand, the freedom of expression is a constitutional right envisaged for everyone and constitutes one of the main elements forming the basis of a democratic society and one of the fundamental conditions necessary for the progress of the society and improvement of the individual. The freedom of expression enshrined in Article 26 of the Constitution also encompasses the expression of critical thoughts. In principle, the freedom of expression mainly aims at guaranteeing the freedom of criticism. Therefore, severe nature of the expressions used while disclosing and disseminating thoughts must be considered natural. It is known that the acceptable limits of criticisms towards the persons exercising public power are broader than the limits of criticisms towards the other persons. However, even if towards the public officers, the criticisms must not reach the defamatory level which would impair the individuals’ honour and reputation. The fact that those providing public service must be more tolerant than the other individuals does not mean that their “reputation or rights” would remain unprotected. The freedom of expression does not provide the individuals with the right to defame others because the act of defamation amounts to an attack against the other individuals’ reputation or dignity. Such an act is not protected by any legal order.

Although the impugned provision imposes a restriction on the freedom of expression, this restriction has been introduced with a view to protecting the others’ reputation or rights and ensuring the protection of public order and falls within the scope of the measures required to be taken in a democratic society. The provision in dispute does not pose an obstacle for the individuals to disclose their thoughts and convictions on condition of not impairing the others’ reputation or rights. Therefore, the restriction introduced with the impugned provision is not of a nature which precludes the proper enjoyment of the freedom of expression or which renders it dysfunctional.

Consequently, the Constitutional Court has found the impugned provision not in breach of the Constitution and decided to dismiss the requests for annulment thereof.