This statement was originally published on hrw.org on 29 April 2015.
A Turkish court on April 29, 2015, released from prison a lawyer facing trial for insulting President Recep Tayyip Erdoğan, but he should not be facing such charges in the first place, Human Rights Watch said today.
Umut Kılıç, 24, is one of several people facing charges of defaming the president over the past few months who have been placed in pretrial detention without any good reason.
“Turkey needs to stop putting people on trial for insulting public officials,” said Emma Sinclair-Webb, senior Turkey researcher at Human Rights Watch. “It's especially worrying to see courts ordering pretrial detention when the case involves insult to President Erdoğan.”
Kılıç was arrested on April 21 after an altercation with a board interviewing prospective judges at the Justice Ministry in Ankara. Senior ministry officials on the interview board called the police and had him detained after he allegedly made critical comments about them, the government, and the president.
He was taken before a prosecutor, and then a court, which ordered him to be sent to prison pending completion of the investigation. Justice Minister Bekir Bozdağ, who must consent to any prosecution for insulting the president, granted permission, and on April 27, an Ankara prosecutor indicted Kılıç for insulting the president under article 299/1 of the Turkish Penal Code and for insulting public officials under article 125. He faces a possible total sentence of eight years and nine months and a deprivation of the right to hold public office or to vote in elections, under article 53.
The prosecutor's indictment is based on a record of the incident approved by senior Justice Ministry officials that alleges that Kılıç called the interview board “collaborators of the existing system, lackeys of the fascist AK Party power” (“mevcut sistemin işbirlikçisi olduğumuz faşist Ak Parti iktidarının uşakları olduğumuz”) and that “as he was led away he was heard shouting slogans such as 'thief, murderer Recep Tayyip Erdoğan'” (“dışarı çıkarılırken 'hırsız, katil Recep Tayyip Erdoğan' şeklinde slogan attığı duyulmuş olup”). Kılıç's lawyers told Human Rights Watch that he disputes this version of the incident and believes that cronyism in the judiciary has prevented him from being appointed a judge though he passed the written examinations.
The framework of the European Convention on Human Rights protects even shocking and offensive speech. But, the indictment contends that criminalizing insult to the president is necessary “for the aims of upholding the high and unshakeable reputation of the president…” (“bu hükümle Cumhurbaşkanına saygının yüksek ve sarsılmaz bir halde tutulmasını sağlamayı amaçladığı”) and protecting “the state's spiritual personality, constitutional institutions and legal personality” (“böylece devletin manevi kişiliği, Anayasal kurumları ve hukuksal kişiliğinin korunduğu”). It also contends that European Court case law has not defended terms such as “thief, murderer” as free speech. No date has been set for Kılıç's trial, but it is expected to start in the coming weeks.
Turkish government figures regularly contend that insulting words are not free speech. Bodies including the Council of Europe, the European Commission, the Organization for Security and Co-operation in Europe, and human rights groups in Turkey and internationally have repeatedly criticized this position and Turkey's regular restriction of freedom of expression. The European Court of Human Rights (ECHR) has repeatedly issued rulings on Turkey, finding violations of freedom of expression protected under article 10 of the European Convention.
“It is vital to Turkey's democracy and rule of law for the courts to protect free speech in line with international standards and for the Turkish government to stop misrepresenting ECHR case law,” Sinclair-Webb said. “Putting Kılıç and others in detention while under investigation without any good reason looks like summary punishment.”
Since the end of 2014 the authorities have pursued a spate of such cases with the justice minister's permission, including against children, and several have entailed short periods of pretrial detention. Prosecution for insulting the president can result in a sentence of between one and four years, increasing by one-sixth if committed publicly. Some cases have involved oral statements; others were for criticism on social media. In no case has the accused used or incited violence. Among such cases documented by Human Rights Watch are:
- On December 23, police detained a 16-year-old student in Konya the day after he made a speech at a political meeting. The boy is alleged to have said, “As Halkçı Lysee students, we say that we don’t see Erdoğan, the chief of corruption, bribery and theft, as this country’s president but rather as thief Tayyip of the illegal palace” (“Liseliler olarak şunu söylüyoruz, yolsuzluğun, rüşvetin, hırsızlığın başı olan Erdoğan’ı bu ülkenin Cumhurbaşkanı olarak değil kaçak sarayın hırsız Tayyib’i olarak görüyoruz”). A court placed him in pretrial detention but released him on appeal on December 26. His trial before the Konya Juvenile Court began in March 2015, then was postponed until September. Another 17-year-old boy in Konya is also being prosecuted for a similar offense;
- Police detained Onur Kılıç, a political activist from the socialist Birleşik Haziran movement, on February 12 for shouting the slogan “Thief, murderer” at a January 10 political meeting in Izmir. On February 13 an Izmir court put Kılıç in pretrial detention. He was released on February 27 following an appeal, but his prosecution for insulting the president is scheduled for May 5 in Izmir;
- Police detained Kadir Yavaş, 22, a university student, in Edirne on February 13 and another student, Şafak Kurt, 24, in Akhisar on February 14 for insulting the president. Yavas spent 3 days, and Kurt 11 days, in pretrial detention before they were released on appeal. Kurt’s trial began on April 7 and has been postponed to July. Yavas’ trial is to start on April 30;
- Police detained former ruling party member of parliament, Feyzi İşbaşaran, on December 8, 2014, for tweets insulting the president. An Istanbul court placed him in pretrial detention. He was released on appeal on January 20, 2015. His trial opened in February and is continuing; and
- Police arrested a 40-year-old small business owner, İlker Bulundu, at his home in Silifke on April 25, one month after he criticized the president on social media. A court placed him in pretrial detention, where he remains.