Germany: Freedom of Expression - Erdogan Insult 'Serious Crime Against Humanity'

Germany:  Freedom of Expression - Erdogan Insult 'Serious Crime Against Humanity' https://www.washingtonpost.com/news/worldviews/wp/2016/04/12/could-this-poem-trip-up-angela-merkel/?tid=sm_tw How a vulgar poem is giving Germany’s Merkel a real headache By Rick Noack April 12 at 7:48 AM It all started with a joke. Last week, German comedian Jan Böhmermann aired a segment on his show in which he read an openly offensive poem, directed at Turkish President Recep Tayyip Erdogan, in which he accused him of bestiality and other unsavory things. The Turkish politician previously criticized a much less controversial satirical segment that aired on another German channel. But Böhmermann went too far for Erdogan. The Turkish president officially filed charges against the German comedian on Monday — using a little-known German law. But it could cost German Chancellor Angela Merkel her job, according to some commentators. Respected German weekly Der Spiegel argued in its lead story Tuesday that Merkel — among the most powerful women in the world — "could stumble" over the scandal that started as a laugh. Merkel has survived far worse crises. So why is the Böhmermann controversy so dangerous to her office, according to German media? Insulting a head of state is a criminal offense in Germany, and it's up to Merkel to decide whether Erdogan's case can be heard in German courts. And here's where it gets really complicated. Merkel and the European Union recently negotiated a refugee deal with Turkey that arguably saved her chancellorship, and — for the moment, at least — greatly decreased the influx of refugees and migrants. But Merkel has also made clear in the past that she strongly supports freedom of the press. Erdogan has been accused of shutting down newspapers and threatening journalists at home. By filing charges against Böhmermann, who works for one of the country's main public television stations, ZDF, Erdogan has taken his fight abroad. He also puts Merkel into an awkward position. If she accepts Böhmermann to be charged for insulting Erdogan, critics will accuse her of sacrificing press freedom. But if she refused to accept the charges Erdogan put forward, she could threaten German-Turkish relations at the worst possible time, when a crucial refugee deal is being implemented. If Turkey withdrew from the deal as a consequence, it would dash hopes of European nations of finding a way out of the migrant crisis. "The whole country now watches, as Erdogan embarrasses the chancellor and parades her like in a circus ring," Der Spiegel commented Tuesday. The current scandal is also considered a delayed consequence of Merkel's decision to allow hundreds of thousands of Syrians into the country last fall. Her policies have made her so politically vulnerable that even a joke could now turn into a serious threat to her office — partially because Merkel has so far refused to clearly side with Böhmermann and those arguing that a potential trial is a threat to freedom of the press. The chancellor even called the comedian's poem "deliberately offending" — a comment that some interpreted as support for Erdogan. "The scandal undermines her credibility and exposes her failed migration policies," German news channel n-tv said Tuesday. Tensions have risen for days. On Monday, Turkish Deputy Prime Minister Numan Kurtulmus said that the poem — which has since been deleted from ZDF's website — was not only an insult against Erdogan but against all Turks. "That is why the Republic of Turkey demands that this impertinent man is immediately punished for insulting a president, within the scope of German law," Kurtulmus was quoted as saying. He went on to call the poem a "serious crime against humanity" that had "crossed all lines of indecency." Böhmermann could face jail time or a fine if a German court found him guilty. Other prominent members of the public, including Mathias Döpfner, head of the country's influential Axel Springer publishing company, have already declared support for the comedian. Böhmermann has deliberately provoked the public in the past and might even have expected to face a trial. For Merkel, though, his joke is starting to create real problems. Also read: A German comedian read a lewd poem about Turkey’s Erdogan. Now he could face jail time. Rick Noack writes about foreign affairs and is based in Europe. https://www.washingtonpost.com/news/worldviews/wp/2016/04/12/could-this-poem-trip-up-angela-merkel/?tid=sm_tw Zeit.de German to English Translation EXTRACTS http://archive.is/l4fal Turkish President Recep Tayyip Erdoğan has filed a criminal complaint against Jan Böhmermann. So the Mainz Prosecutors said on Monday evening , the complaint against the ZDF satirist received by them. ... A criminal complaint will now be examined in addition to the already pending due to attack on the institutions and representatives of foreign states. ... Deputy Prime Minister Numan Kurtulmuş said in the southeastern Turkish city of Sanliurfa, the poem is not only an insult of Recep Tayyip Erdoğan, but from all 78 million Turks. ...  Kurtulmuş that Turkey would exert "absolutely no political pressure" in Germany. He threw Böhmermann before but having committed a "serious crime against humanity".  The poem had "exceeded all limits of shamelessness".  ... ... The Turkish government refers, in calling on the paragraph 103 of the German Penal Code. It says: "Who is a foreign head of state (...) offended with imprisonment up to three years or fined, punished in case of defamatory libel with imprisonment from three months to five years." For a prosecution in such cases, it need in addition to the request for prosecution of Turkey, a corresponding authorization on the part of the federal government. The party leader of the Greens demanded meanwhile, to delete the paragraph for insulting representatives of foreign states from the Criminal Code. A paragraph to "lese majeste" is no longer appropriate. It could not be, "that other countries judge how we interpret freedom of speech." Received support Böhmermann also by former Greek Finance Minister Yanis Varoufakis. The tweeted, Europe has lost in the refugee crisis his soul, now it lose its humor. His demand: "Hands off @janboehm".     Europe first lost its soul (agreement with Turkey on refugees), now it is losing its humor. Hands off @janboehm ! Https://t.co/w6bTJjp0QG         - Yanis Varoufakis (@yanisvaroufakis) April 11, 2016  http://archive.is/l4fal Defamation - German Criminal Penal Code Section 103 Defamation of organs and representatives of foreign states (1) Whosoever insults a foreign head of state, or, with respect to his position, a member of a foreign government who is in Germany in his official capacity, or a head of a foreign diplomatic mission who is accredited in the Federal territory shall be liable to imprisonment not exceeding three years or a fine, in case of a slanderous insult to imprisonment from three months to five years. (2) If the offence was committed publicly, in a meeting or through the dissemination of written materials (section 11(3)) Section 200 shall apply. An application for publication of the conviction may also be filed by the prosecution service. http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1035 GERMAN CRIMINAL CODE Translation of the German Criminal Code provided by Prof. Dr. Michael Bohlander http://www.gesetze-im-internet.de/englisch_stgb/index.html#gl_p0008 Criminal Code of 1871 -- appears to be the codification of:     1.  Hohenzollern Empire penal code; and     2.  Weimar Republic penal code. http://www.dmlp.org/blog/2012/l%C3%A8se-majest%C3%A9-16th-century-censorship-meets-21st-century-law Lèse Majesté: 16th Century Censorship Meets 21st Century Law Posted July 12th, 2012 by Marie-Andree Weiss When hearing the expression “lèse majesté,” images of the Queen of Hearts ordering heads to be chopped off ASAP may come to mind. Marie-Antoinette, the queen who was once a “majesté” in France, herself lost her head during the French Revolution. Surely, the crime of lèse majesté is now a thing of the past? Lèse Majesté Law is Heavily Enforced in Thailand Not quite, as some monarchies still prosecute this crime. Several of the European monarchies still have lèse-majesté laws, including Norway, where prosecuting the crime can only be carried out by the king or with his consent. Thailand, a constitutional monarchy, has had a lèse-majesté law since 1908, the year of the enactment of its first criminal code. Although the political powers of the king (currently King Bhumibol Adulyadej, who has reigned since 1946) are limited, the monarchy is held in high regard.  A clause in the Thai constitution states that "The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action." Article 112 of the Thai Criminal Code states that "Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to 15 years." The code does not define, however, what constitutes a defamation or an insult. Thailand has been enforcing its lèse majesté law quite aggressively lately. It seems that the law has been used by Thailand prosecutors to suppress political speech critical of the monarchy, particularly speech by partisans of former Prime Miniter Thakshin Shinawatra, who are known as the "Red Shirts." In September 2006, a military coup d’état deseated Prime Minister Thaksin Shinawatra and dissolved the Parliament. Since 2009, the Thailand public prosecutor has filed 12 lèse majesté suits against the Red Shirts, or persons suspected of supporting them. For instance, Ampon Tangnoppakul was sentenced last November to 20 years in prison by a Thai Court, for having sent four text messages to a government official criticizing Thailand’s royal family. He claimed that he never sent these messages, and that he does not even know how to send text messages. Mr. Tangnoppakul died last May while serving his sentence. He was not the only person incriminated of lèse-majesté in Thailand. Surachai Danwattananusorn, who has criticized the 2006 coup d’état, was sentenced in February 2012 to seven and a half years of prison for having insulted the monarchy. Journalists and bloggers are also feeling the heat. The editor of a Thai political website was sentenced in 2012 to a eight-month suspended sentence because she had not removed comments believed to be insulting to the monarchy, an offense under section 15 of the Thai Computer Crime Act. Impact of the Thai law on Foreigners It has been argued that Facebook could be prosecuted in Thailand under its Computer Crime Act if one of its users posts derogatory comments about the Thai government or the Thai king. Section 17(2) of the 2007 Thai Computer Crime Act indeed provides that a person committing an offense under the Act is publishable in Thailand, if the injured party is the Thai government or a Thai. Also, section 14(3) of the Act criminalizes imputing data in a system (posting on a blog is imputing data) which is the commission of the offense relating to national security according to the criminal code. Lèse majesté is criminalized by the criminal code. Thai censorship is also felt abroad. Google revealed in its last Transparency Report that it received four requests from Thailand’s Ministry of Information, Communication and Technology to remove 149 YouTube videos. These videos were allegedly insulting to the monarchy and thus violated Thailand's lèse-majesté law. Google stated that it had restricted 70 percent of these videos from view in Thailand in accordance with Thai law. Oui, Lèse Majesté is Still a Crime in France Lèse majesté does not necessarily refer solely to insulting a monarch. “Majestas” was defined by Ulpian, a Roman jurist, as "crimen illud quod adversus Populum Romanum vel adversus securitatem ejus committitur" – that is, the crime committed against the Roman people or against its security. “Majestas” referred to the Roman state as a whole, and this, as early as the Roman Republic, before Rome became an empire. Interestingly, some republics criminalize lèse majesté. One of these is France. The French law on the freedom of the press, first enacted on July 29, 1881 (French Press Law), is still in force after many amendments, and now regulates all media, including blog postings. Its article 26 criminalizes offending the president of the republic by “speech, shouts, threats uttered in public places or during public meetings, or by writings, printed materials, drawings, engravings, paintings, emblems, images or any other medium of written words, spoken words, or images sold, distributed, or displayed in public places or public meetings or by any way of electronic communication to the public.” It is a felony punishable by up to a 45,000 euro fine. The law was used in 2008 by then-President Nicolas Sarkozy, in a case that stirred much emotion in France, Hervé Eon, a French citizen, was arrested in August 2008 as he was standing on the side of a road holding a placard card which read “casse toi pauv’ con“ (“get lost you a$$...”). Mr. Eon was quoting the insult uttered by Mr. Sarkozy himself at a disgruntled voter during his visit at the Paris agricultural fair a few months earlier, an exchange captured on a video which quickly became viral. Eon was tried for having offended the French president, under article 26 of the French Press Law. The criminal court found him guilty, and fined him a suspended sentence of 30 Euros. A court of appeals confirmed the judgment. Eon then announced his intention to file a complaint with the European Court of Human Rights in Strasbourg, but it does not seem he followed up on that intent. [Ed. note (4/3/2013) -- It turns out that Eon did in fact file a complaint with the ECHR; see Marie-Andrée's coverage of the ECHR's ruling in the case here.] Insulting Guests is Bad Manners, and also Carries a Prison Term if They Are Foreign Heads of State One can regret that Eon did not file suit, as France abolished another article of the French Press Law, article 36, which criminalized insulting a foreign head of state, a foreign head of government, or the minister for foreign affairs of a foreign government, following a 2002 ruling by the European Court of Human Rights against France, Colombani and others against France. In that case, the director of publication and a journalist of Le Monde had been convicted by the Paris Court of Appeal for defamation of then-king of Morocco, Hassan II. The short article stated that the king’s entourage was implicated by a confidential report on drug trafficking in Morocco. The Court of Appeal found that the journalists had not published these facts in good faith, and that the publication was “tainted with malicious intent.” The European Court of Human Rights noted (§56) that a politician “is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly.” However, the Court found that the conviction of the journalists by the French courts “incontestably amounted to an interference with the applicants' exercise of their right to freedom of expression” as guaranteed by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case was a victory for journalists and bloggers, as the offense was punishable at the time by one year of imprisonment or a 300,000 francs fine (more or less $60,000), quite a hefty sum. Germany, also a signatory of the European Human Rights Convention, as is every member state of the European Union, has not taken stock of the Colombani case. Paragraph 103 of the German Federal Criminal Code still criminalizes insulting a foreign head of state, the representative of a foreign state, or the head of a diplomatic mission, § 103 StGB:     Any person who offends , by reference to their position, a foreign head of state, a member of a foreign government, or the leader of a foreign diplomatic mission, acting in their official capacity, while being present within the Federal Republic of Germany or within a Federal Territory, will be punished by imprisonment up to three years or a fine. If the offence is defamation, the penalty will be imprisonment from three months to five years. Are Changes Ahead? No changes seem to be ahead in Thailand. In France, several French representatives in May 2012 sponsored a bill aiming at suppressing article 26 of the French Press Law. In the bill’s explanatory memorandum, the representatives stated that article 26 was “akin to an incongruous relic of the old Regime lèse-majesté, repealed from the Criminal Code in 1830.” The representatives argued that at the time of the enactment of the French Press Law, during the Third Republic, the president merely played the role of an arbitrator. He was not elected by direct universal suffrage, and was thus above partisan political debates. However, the French president has been elected by direct universal suffrage since 1962. Criminalizing offenses to such a very active participant in the democratic debate is thus not appropriate in a democracy, according to the sponsors of the bill. The bill was not enacted. France recently changed majority. The Senate and the House are now held by a socialist majority, and François Hollande, a socialist, was elected president in May. It remains to be seen if a bill will again be presented to abolish article 26 of the French Press Law. In the meantime, insulting the king of Thailand or the president of France on a blog still carries a risk of prosecution.  However, though France or say, Norway, may chose to enforce their laws if one of their own nationals is the author of a lèse majesté crime, it is very unlikely that they would ever ask a foreign content provider to remove content offensive to the head of state, or would prosecute a foreigner, as Thailand does. As the French say, it is best to wash ones’ dirty laundry at home. Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law. http://www.dmlp.org/blog/2012/l%C3%A8se-majest%C3%A9-16th-century-censorship-meets-21st-century-law ---------------------- ---------------------- COMMENT Sarkozy is such a creep.  What a nasty rat. I'm not too keen on that Yanis Varoufakis economist / statistician, either.  He's such a shill for neocon globalist agenda. Erdogan is positively despicable.  Europe, take back Anatolia.  LOL European laws are ridiculous.  Look at the way all these laws can be misused. Merkel needs to tell Erdogan to get stuffed:  the German law's incompatible with article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (*freedom of expression*).