As is well known, on 9 July 2018 the transition was made to the party-affiliated Presidential system of government. In the previous system (the parliamentary system), the Prime Minister and the President were at the head of the executive. The Prime Minister was at the same time the leader of a political party and the person who formed the government. The President, on the other hand, represented the legal personality of the State and carried out certain duties and powers conferred on him by the Constitution. However, with the new system these two offices were merged. The President was given both the power to represent the legal personality of the State and the executive duty and power. (Constitution Art. 8) At the same time, the President was also given the right to be the leader of the party of which he is a member. (By repealing the former paragraph 4 of Article 101 of the Constitution)
The offence of insulting the President is regulated in Article 299 of the Turkish Penal Code (TCK) as follows:
(1) A person who insults the President shall be punished with imprisonment from one to four years.
(2) Where the offence is committed publicly, the penalty to be imposed shall be increased by one sixth.
(3) Prosecution for this offence is subject to the permission of the Minister of Justice.
This offence was enacted during the period of the parliamentary system of government. That is to say, at a time when there was the Prime Minister on one side and, on the other, the President representing the State, it was enacted in order to protect the dignity of this office, which represented the State and was removed from any political identity, and to keep it away from political debates.
Looking at the legislative rationale of the article:
“In view of the fact that the President represents the State and of the duties and powers set out in the Constitution, this article was drafted on the basis of the idea that an act directed at his person should, in a sense, be regarded as one of the felonies against the powers of the State, and insulting the President was made a separate offence.”
As is clearly seen, the reason for enacting the offence is the wish to provide special personal protection to the President because he represents the State and is impartial. Not only did he represent the State; in the old system the President was also obliged to perform an impartial role. With the 2017 amendments, the heading of Article 101, which read “Qualifications and impartiality”, was also repealed and changed to “Candidacy and election”. Likewise, the content of the oath the President takes on assuming office also contains an emphasis on impartiality.
This offence, which was enacted as a separate offence to protect the impartial, non-partisan President representing the State in the old system, continues to be applied in the same way following the change of system, solely because the names are the same. The problem stems precisely from this point. As is clearly seen for the reasons stated above, the legal nature of the President in the previous system differs from his current nature. As is known, one of the fundamental principles of criminal law is the prohibition of analogy in offences and penalties. The current de facto situation creates an indirect analogy. This matter, which is contrary to the rationale of the offence and to the spirit of the penal code, creates a situation contrary to the Constitution.
Moreover, in practice this situation also victimises thousands of people. In the current system, in which the President is the leader of a political party and is therefore not an impartial President, citizens may at times voice harsh criticism because of errors in government or for various political reasons. Subsequently, when the acts of these persons become the subject of criminal proceedings, the offender may be remanded in custody because of the gravity of the offence and may be punished more severely than under the general offence of insult. Indeed, the European Court of Human Rights and the Constitutional Court have accepted in many of their decisions that criticism directed at politicians being harsher and more disturbing than that directed at ordinary citizens is the cornerstone of freedom of expression, which is an indispensable element of a democratic legal system. What needs to be done to resolve this situation is the repeal of this offence from our penal code. Consequently, the offence of insult committed against a party-affiliated and partisan President should not be treated differently from the general offences of insult.
ATTORNEY ÜMİT ALTAY
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/cumhurbaskanina-hakaret-sucunda-anayasaya-aykirilik-sorunu