Case Summary and Outcome

The European Court of Human Rights concluded that pre-trial detention and sentencing of the applicant to imprisonment for having insulted the President of the Republic in two Facebook posts constituted a violation of the right to freedom of expression guaranteed under Article 10 of the European Convention on Human Rights (“the Convention”). The Court emphasised that criminal sanctions, particularly imprisonment, for political criticism discourage public debate and are incompatible with democratic principles. It further held that Article 299 of the Turkish Criminal Code, a special provision affording higher protection to the President against defamation could not be considered in keeping with the spirit of the Convention and should be amended.

Facts

On 18 May 2017, the applicant, Vedat Şorli, was taken into police custody and subsequently placed in pre-trial detention in connection with two criminal investigations. The charges related to allegations of insulting the President of the Republic of Turkey and propaganda in favour of a terrorist organisation through content shared on social media. The contested material consisted of two Facebook posts, including a caricature and a photograph of the head of state, accompanied by satirical and critical comments.

On 21 July 2017, following his trial, the Criminal Court found Mr Şorli guilty of insulting the President under Article 299 § 1 of the Turkish Criminal Code, which prescribes a sentence of one to four years’ imprisonment for defaming the President. He was sentenced to eleven months and twenty days’ imprisonment. However, under the procedure of suspension of the pronouncement of the judgment, the sentence was conditionally postponed for five years—meaning that if he did not commit an intentional offence within this period, the conviction would be quashed and the case would be struck from the record.

Following the rejection of his appeal before the Assize Court on 20 September 2017, Mr Şorli lodged an individual application with the Constitutional Court of Turkey, arguing that his pre-trial detention, criminal conviction, and five-year probation period violated his right to freedom of expression. The Constitutional Court declared his application inadmissible, citing lack of substantiation. Subsequently, Mr Şorli brought his case before the European Court of Human Rights, alleging a violation of his rights under Article 10 of the European Convention on Human Rights.

Decision Overview

The European Court of Human Rights (ECtHR) delivered a judgment finding that the criminal proceedings and conviction of the applicant for insulting the President of Turkey violated Article 10 of the European Convention on Human Rights.

The main issue before the Court was whether the applicant’s pre-trial detention, conviction, and suspended prison sentence constituted an unjustified interference with his right to freedom of expression under Article 10 of the Convention.

The applicant argued that his criminal prosecution and conviction for Facebook posts containing satirical criticism of the President of Turkey constituted an unlawful restriction on his right to freedom of expression. He maintained that the interference lacked a legitimate aim and was not necessary in a democratic society.

The Turkish government contended that the interference was lawful, as it was based on Article 299 of the Turkish Criminal Code, which protects the honour and reputation of the President. The government asserted that similar defamation laws exist in other European jurisdictions and that the suspended sentence did not create a chilling effect on the applicant’s freedom of expression.

The intervening party, İfade Özgürlüğü Derneği (İFÖD), an NGO advocating for freedom of expression, argued that Article 299 had been widely used to suppress dissent, particularly during the presidency of Recep Tayyip Erdoğan. İFÖD highlighted the systemic bias in domestic courts, which had failed to apply ECtHR jurisprudence on defamation cases involving the President.

The ECtHR acknowledged that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation and rights of others. However, it found that the special protection afforded to the President under Article 299 created an imbalance inconsistent with the principles of a democratic society.

The Court reiterated its well-established case law that granting heads of state special protection against criticism is not compatible with the spirit of the Convention. It referred to Artun Güvener v. Turkey, where it had held that protecting the reputation of a head of state cannot justify granting them privileges beyond ordinary defamation laws.

The Court found the criminal sanction disproportionate, emphasizing that while State institutions may require legal protection, their dominant position necessitates restraint in resorting to criminal proceedings. It ruled that police custody, pre-trial detention, and a suspended prison sentence were unjustified, even if the sentence was not enforced. The chilling effect of such measures was deemed particularly severe, as it discouraged public debate on matters of political interest.

Furthermore, the Court noted that the Turkish government had failed to demonstrate that the applicant’s prosecution was necessary given the state of emergency following the 2016 coup attempt. It held that Article 299’s privileged protection for the President conflicted with Article 10 of the Convention and should be reformed.

The Court unanimously concluded that the interference with the applicant’s right to freedom of expression was not proportionate and not necessary in a democratic society, thus violating Article 10 of the Convention. Under Article 46, the Court urged Turkey to amend Article 299 to bring it into compliance with Article 10. Under Article 41, the Court awarded the applicant EUR 7,500 in non-pecuniary damages.