Erdogan Against Kilicdaroglu and the Others

Kemal Kilicdaroglu, the leader of the Turkish opposition “Democratic-republican(CHP)”, called Erdogan a  “dictator” at his caucus meeting on October 16 2018. Erdogan, in its turn stated that Kilicdaroglu was paying the compensations established by the court verdict with the party’s means rather than personal.  

Erdogan threatened to confiscate about 28% of the shares of CHP in Turkish “İş Bankası” bank, as it is considered the inheritance of party’s founder Ataturk and belongs to the state. The spat continued with Kilicdaroglu comparing Erdogan with Kenan Evren, the former Chief of General Staff  of the Armed Forces of Turkey, who became the 7th President (1982-89) of Turkey after 1980’s military coup. “Kenan Evran was also telling about confiscating the party’s bank money. Kenan Evren did the same. He was also a dictator. You are doing the same too. You are also a dictator”: announced Kilicdaroglu.

A well-informed reader will already guess that Kilicdaroglu’s announcement will unlikely remain unanswered, and most likely that Erdogan will demand a large amount of compensation. Kemal Kilicdaroglu became the most popular figure in the history of court cases on insulting the President, he also has paid the most compensation for his insults.

During the years of Prime Ministry (2003-2014) and Presidency (from 2014), Erdogan has filed more than 2 dozens lawsuits against the CHP leader. In the last 8 years, 15 verdicts were decided against Kilicdaroglu, forcing him to pay Erdogan 1 million lira compensation.

Thus:

On June 29, 2010, Erdogan, the Prime Minister of Turkey, filed a lawsuit against Kilicdaroglu. On June 5, during the rally in Mugla, the opposition figure accused Erdogan of “planning betrayal, theft and getting rich illegally”, which is slander according to the prosecutor.

Ankara’s court ordered Kilicdaroglu to pay the Prime Minister a compensation of 4000 liras (about 2650 US at the time). As a result of the two lawsuits, on June 25, 2011 he was obliged to pay another 1000 lira (6300 dollars). On February 7 and May 10, of 2011, Ankara’s court sentenced Kilicdaroglu and fined him yet again with another 13000 liras (8120 dollars) and 7000 liras (4540 dollars) compensation.

On October 23, 2012, as a result of 4 court proceedings out of 5 instigated against Kilicdaroglu by Erdogan’s advocates, the opposition figure was found guilty agaom and had to pay Erdogan 2000 liras (11140 dollars). The deputy payed another 2000 liras in February, for declaring Erdogan as “a traitor of the country” during one of the party meetings. In 2013-2016, the court ordered Kilicdaroglu to pay Erdogan the compensation of 157500 liras (more than 32000 US dollars) for “violating personal rights”, “spreading rumors, voicing insults and accusations” about Erdogan and his family.

The amount of compensation kept increasing and on June 7, 2018, the 5th Anatolian court of Istanbul this time ordered Kilicdaroglu to pay 197000 liras (42660 dollars) to Erdogan and his relatives, of which 11000 needed to be paid personally to the President. The accusations voiced by Kilicdaroglu at the parliamentary session on November 28, 2017, was on the basis of a lawsuit according to which Erdogan and his relatives transferred millions of dollars to an offshore company account registered in the Isle of Man of Great Britain. In June of this year, due to those comments the court again fined Kilicdaroglu another 142000 liras (31150 dollars), of which 100.000 to Tayyip Erdogan. Additionally on  July 18 the 20th Anatolian court of Istanbul ordered Kilicdaroglu to pay another round of compensation because of his comments 359.000 liras (74.000 dollars) to Erdogan and his relatives. In total, Kilicdaroglu had to pay Erdogan and his relatives 698000 liras (about 147000 dollars) because of the statements made on the monetary transfers to the off-shore companies registered in the Isle of Man. This amount does not account for the court percentages, calculated from the date of the statement underlying each case.

Overall, Kilicdaroglu should pay a penalty of 90900 liras (about 187600 US dollars). At the request of Erdogan’s lawyer, the process of collecting fines has started before the judicial decisions will come into force. Kilicdaroglu’s lawyer already payed the 909353 liras as a pledge, which will be transferred to Erdogan’s account after the sentence is passed and legal force is gained.

Furthermore, there are also a few other criminal cases against Kilicdaroglu by Erdogan, the trial of which is still going on. This trials became so common for the Turkish opposition figure, that he is not suppressed in any way, and calls on Erdogan to file new lawsuits. “Honored Erdogan, you require, that people convert their dollars to liras. So why do you pay your employees in dollars? Because you are the man of the dollar barons. If you don’t sue, than you are coward”: announced the CHP leader on September 9. Indeed, few days later, Hussein Aidin, Erdogan’s lawyer, filed another lawsuit in the Court of General Jurisdiction, ordering Kilicdaroglu to pay 250000 liras (about 38500 dollars) compensation.

O n July 17, 2018, Erdogan filed yet again another lawsuit against Kilicdaroglu and 72 MPs from his party for publishing a famous caricature “Kingdom of Tayyip’s”  in Twitter. On the same day at his party’s meeting Kilicdaroglu was accused of offending Erdogan, for organizing the coup attempt in July 2016 and taking advantage of it, having a Turkish terrorist Fetullah (FETÖ) branch group, calling Erdogan “dictator” and “pharaon”. Erdogan ordered Kilicdaroglu compensation of 1 million liras (about 20630 dollars) for this statement.

Eleştiriye ve mizaha tahammül edeceksin, etmelisin! Hapse atarak eleştirinin ve mizahın önüne geçemezsin. pic.twitter.com/D30J2cHsa6

— Kemal Kılıçdaroğlu (@kilicdarogluk) 17 июля 2018 г.

Kilicdaroglu’s caption on the caricature reads: “You should endure the criticism and humor, you must endure. You can't prevent criticism and humor by imprisoning”. It should be noted that earlier 3 students from Turkish Middle East Technical University were persecuted for wearing posters with the caricature. On February 2005, it was printed on the “Penguen” magazine cover, for which a lawsuit was filed and a fine of 40000 liras compensation  was given(30600 dollars), but was rejected by the court, as the caricature fell within the framework of freedom of speech.

Lawsuits against other figures

Though the CHP leader is not alone in this type of cases, the number of opposition deputies, cartoonists, journalists, artists, as well as ordinary citizens, even numerous juveniles have appeared in court for offending Erdogan. As a rule, the basis for the lawsuits are criticizing the President or humorous comments in social networks, caricatures, posters in the public places, expressions and even gestures in public speeches directed at Erdogan.

These cases are too much to touch upon all in one article. During the Prime Minister Devlet Bahçeli’s term the leader of the “Nationalist Movement” party, Erdogan had already filed about 20 lawsuits against him. As to a Turkish press release, 6 judicial cases were completed in 2013, and Bahçeli needed to pay Erdogan 44500 liras (22250 dollars). Judicial cases were filed against BahçelI after Erdogan’s becoming president, but after the “amnesty” of 2016, BahçelI and his party co-members were no longer targeted by Erdogan.

Sellahattin Demirtaş, former Co-Chair of the pro-Kurdish “Peoples’ Democratic” party was forced to pay Erdogan the compensation of 15000 liras (4000 dollars) by the Ankara’s Court’s ruling in 2018. During the pre-election campaign rally held in Mercin on February 27 2016, Demirtaş said by alluding to Davutoglu and Erdogan: “You create power by doing evil, but we will fight against your fascism. What are you going to do? You will be remembered in history as the cruelest Prime Minister.  Even war has its logic, you are lacking in logic. If you become the caliph of Islam. The caliph won’t come out as a thief”.

Figen Yuksekdag, another former Co-Chair of the “Peoples’ Democratic” party, was sentenced to 1 year and 2 months imprisonment for calling Erdogan a “dictator”, the punishment was later changed into a monetary penalty, and on February 2018, former PDP deputy Ahmet Yıldırım was sentenced to 1 year and 2 months imprisonment losing his parliamentary mandate on February 27.

The Armenian Community has not been deprived of this sinister undertaking as well. Hayko Bagdat, Turkish-Armenian journalist and writer has been persecuted for years on the charge of insulting Erdogan. In 2015, a criminal case was filed against Ahmet Hakan, the journalist of “Hürriyet” magazine, who was attacked by the President on September 30, 2015, in the article “The reason for the hitting fist to Ahmet Hakan is Recep Tayyip Erdoğan”, and other journalists, for bringing accusation of instigating hatred.

In 2018 Turkish court appealed to the Berlin court with a request for legal assistance, asking for a testimony from German resident Bagdat the request was rejected. In March, the Turkish court decided to detain the Armenian journalist.  Bagdat himself is sure that the decision won’t be brought to life so easily, as he is well protected in Germany.

In January 2017 a criminal case has been initiated against Armenian deputy Garo Paylan for his comments in the Mejlis in January and in the “Horizon Weekly” interview, based on the articles of Turkish PC 299 and 301, (“ About publicly humiliating Turkish Nation, Turkish Statehood and Turkish Government”). The case against Pailan was initiated by Aygün Attar, the former Rector to the Giresun University and Azerbaijani by descent.

The Attorney General of Ankara included the following part of Paylan’s speech as evidence: “The President Erdogan has been formed in a new coalition with the “Nationalist Movement” party for the last 2 years, the member of the parties of which are evil for different groups in society. The press is being censored, NGOs are closing, and hundreds of thousand people are being fired from work. This coalition spreads horror in all parts of Turkey. These are the black days of Turkey”.

Moreover, in order to initiate a case against Turkish MP Garo Paylan, it is necessary to get the permission of the Ministry of Justice, which is mandatory in case of Article 301, but also the permission of Turkish Parliament which will in turn deprive Paylan from deputy immunity.

Statistics

A lthough it is impossible to find statistics on the lawsuits filed for the moral compensation claims during Erdogan’s presidency, in the press nevertheless there is some data on the volumes of Erdogan’s assets that have been multiplying.  

According to the report created by Yaman Akdeniz and Kerem Altiparmak for the combined platform of the Turkish Human Rights, 6860 criminal case was initiated in 2010-2016, 6272 of which are after Erdogan becoming president. The number of criminal investigations initiated on the basis of PC 299, has also increased dramatically. If 2136 investigations started from 2010-2014, 682 criminal investigation were recorded in 2014, 7216 in 2015 and 38254 in 2016.

1.315 verdicts were reached from 2010-2016, 1.162 of which after Erdogan becoming president. As stated from the information published by Turkish Ministry of Justice 13 years ago, Prime Minister Erdogan had already received moral compensation of  111  billion 500 million liras (81.380 dollars) within the frameworks of 21 trials by 2005.

“Amnesty”

After the coup attempt in 2016, Erdogan announced on 29 of January, that he was going to recall all the lawsuits filed against him. However, later it turned out that the PDP representatives didn’t have amnesty and on those against whom the criminal charges were against on article PC 299. The problem is that the PC 299 article on “Insulting the President of Turkish Republic” allows to start a judicial process regardless of the lawsuit, so called, on behalf of the public or state, for which only the approval of the Minister of Justice is sufficient. Therefore, even if Erdogan cancels the lawsuits, the cases initiated by the article 299, cannot be suspended.

Article 299 of Turkish Penal Code

The article 299 of the Penal code, passed by the Law №5237 about “Insulting the President of Turkish Republic” on September 26, 2004, defines:

1. The person who insults the President shall be punished by imprisonment from 1 year to 4 years.

2. If the crime is committed publicly, the punishment will be increased by 1/6 and by 1/3 if committed by the press or broadcast (The second part of this point has been removed from the article by edited in 2005).

3. The initiation of a prosecution for such offence shall be subject to the permission of the Minister of Justice.

Lawyer’s struggles against the article 299

Thousands of the lawsuits under by this article after the “amnesty” of 2016, testify that it has become a scourge for Turkish society. On December 4, 2015, a special working group was formed on the Ankara’s Chamber of Advocates’ initiative, to suggest alternative solutions. Famous lawyers, deputies and journalists were involved in the group, who suggested moving the case against article 299 to the Constitutional Court.

Judicial suits against article 299 of the Penal Code

On March 11, 2016, Karshiyaqa 7th and Istanbul 43th Criminal Courts of First  Instance applied to Turkish Constitutional Court, demanding to cancel the Article 299, as it contradicts Constitution’s Article 2 on “Peculiarities of the Republic”, Article 10 on “Equal before the Law” and Article 39 on “Right to Proof”.

The Constitutional Court examined the lawsuit of the December 14, 2016 session and rejected it. The decision was justified by the President of the State was a separate individual and the joint representative of the Turkish State and Turkish People, hence insulting his personality means insulting the State, and punishment should be appropriate.

Article 299 of the Penal Code during the time of Erdogan’s predecessors

t was mentioned at the Turkish Human Rights (İHOP), that Article 299 protects not President’s position but his personality, which wasn’t even given to the kings. The report refers to one of the decisions of European Court of Human Rights, according to which special protection of the king of Spain was regarded as a violation of the European Convention of Human Rights’ requirements. In the author’s opinion the best solution for this problem will be the complete cancellation of the Article 299 of the Turkish Penal Code.

According to the data, published by the Ministry of Justice of Turkey in 2015, only 1359 lawsuit was filed insulting The President of the State during the 7 years of Gul’s presidency, 545 of which were processed but there were no  detainees. Only 26 lawsuits were filed with the same accusation during the presidency of Sezer (2000-2007).

Other Countries experiences

It is worth mentioning, that there are articles with the same content as the Article 299 of the Turkish Penal Code, in almost all the countries of European Union. In Italy 1-5 year imprisonment for offenses directed to the honor or reputation of the President, in Poland up to 3 years, in Germany from 3 months up to 5 years, in Greece up to 3 years, in Portugal up to 3 months, and up to 3 years in case of insulting in the press and in Slovenia up to 1 year imprisonment.

In Italy the guilty can be punished from 6 months to 2 years for insulting the King or the representatives of Royal Family, in Belgium from 6 months up to 3 years, in Holland up to 5 years imprisonment or a fine. However, in almost all EU countries these articles have never been used for a long time or are rarely used. For instance, in Hungary the Law envisaging punishment for insulting the President was cancelled in 1994, in Czech Republic it was cancelled in 1998. In Austria the President insult is regulated by the Article 171, which hasn’t been used since 1975, and in Holland since 1960s. The same is in Belgium, Portugal, Romania and Spain. Although in Poland and Italy the punishment is envisaged, the Article is being used from time to time, nevertheless, the courts only fine, as a rule of thumb. There is a similar article in Germany, even by the Constitutional Court’s decision the worst offense is not qualified as a crime, and the lawsuits on this charge are rare.

What does the Legislation of the Republic of Armenia provide?

I f comparing Article 299 of the Turkish Penal Code with the legislation of Armenia, we should then draw parallels with the Article 1087.1 of the Armenian Civil Code on the “Procedure and Conditions of Compensation of Damage to Honor, Dignity or Business Reputation”. This Article not only defends the rights of the head of State, but all the citizens of RA, who are offended or slandered. According the Article 1087.1 of the Armenian Civil Code on which “Person, whose Honor, Dignity or Business Reputation dishonored by the Offense and Slander”, can file a complaint against offender or slanderer in the court. According to the Law “Offense through the speech, picture, voice, mark or through other means is a public expression to disgrace the honor, dignity and business reputation”, and “Slander is to present facts about the person publicly, which do not correspond to reality and disgrace his honor, dignity or business reputation”. At the same time, public expression cannot be referred as an offense, “if it is based on accurate facts and is conditioned by the supreme public interest”.

And the responsibility for proof of factual circumstances required for the slander cases (with some exceptions) is on the defendant. In Armenia, punishment, equals only a fine. As we see, the means provided by the Armenian Civil Code are much more democratic than in Turkey.

The RA Law defines also limitation period, according to which the lawsuit can be filed within a month after the person’s offense or slander is known, but no later than 6 months, from the offense or slander.

There are numerous cases in the lawsuits filed on charge of insulting Erdogan, when a person is accused for statement or activity of one and more years ago. Also, in case of Turkey, “offense” more likely refers to the slander, criticism, complaint, call for reform and it is too rare, that there will be direct offence in the lawsuits filed on the charge of “insulting the personality”.

Thus, the analysis based on the press release allows to conclude, that Erdogan is the most censored leader. He is also the most protected person from a legal point of view. The necessity of the struggle against Article 299 is realized not only by the Turkish citizens and intellectuals, but by the lawyers and international human rights organizations as well. Nevertheless, any means of the struggle against the usage of the article and its consequences hasn’t given a sufficient result, criminal pursuits on the charge of insulting Erdogan still continue.