The Turkish Constitutional Court’s struggle with the European human rights law: An evaluation of the court’s case-law on the crime of ‘Defamation against the President’ in light of the jurisprudence of the European Court of Human Rights

Abstract

This paper evaluates the Turkish Constitutional Court's norm review and individual application decisions concerning Article 299 of the Turkish Penal Code containing the crime of 'Defamation against the President'. The evaluation is conducted within the context of international human rights law, specifically on the European Court of Human Rights' jurisprudence on crimes that protect heads of state. While the Turkish Constitutional Court did not see an existential problem with Article 299, this paper argues that the Court overlooks significant issues regarding the provision's legality, purpose and proportionality. The view presented is that the Constitutional Court's open disregard of the European Court of Human Rights' judgments, even when these judgments specifically focus on the Turkish crime of 'Defamation against the President' is an example of judicial restraint in which the Court refrains from contesting the President's standing in the current political setting. According to this paper, such a stance cannot be taken, especially in light of the problems of the provision, and the Court should acknowledge that the only way to protect the freedom of expression effectively is to get rid of Article 299