Local court applies to Turkey’s top court to annul article on 'insulting president'

Ayşegül Usta - ISTANBUL

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A local court in Istanbul has ruled to apply to the Turkish Constitutional Court for the annulment of controversial Article 299 of the Turkish penal code, the article on insulting the president, arguing it violates the principle of equality enshrined in the country’s constitution. 

The case against two Istanbul University students, Nuray Uçar and Özgür Yılmaz, who were accused of insulting President Recep Tayyip Erdoğan in their writings published in the Thought Clubs Federation (FKF) newspaper in 2014, was heard at Istanbul’s 43rd criminal court of first instance on March 29.

In his argument, defense attorney Şerif Özgür Urfa said the code on insulting the president constituted a violation of Articles 25 and 26 of the Turkish constitution which regulate freedom of opinion and freedom of expression. Article 299 is also in stark contrast with rulings of the European Court of Human Rights (ECHR), Urfa suggested, asking for the code to be annulled and the case to be referred to the Constitutional Court. 

Granting Urfa’s request, the court ruled to apply to the Constitutional Court for the annulment of Article 299 and to refer the case to the top court. 

In the ruling, the court underlined that regardless of the neutrality of the post of the presidency, the president is nonetheless a political actor. Hence, the decision said, a special code regulating insult cases against the president would constitute a violation of the principle of equality, enshrined in Article 10 of the Turkish constitution. 

The legal advisory body of the Council of Europe, the Venice Commission, recently criticized the controversial article, suggesting its “excessive application” amounted to a violation of freedom of expression. 

“Having regard to the excessive and growing use of this article, the commission considers that, in the Turkish context, the only solution to avoid further violations of the freedom of expression is to completely repeal this article and to ensure that application of the general provision on insult is consistent with these criteria,” the commission said in its resolution recommending changes to the code.