Prior to the trial scheduled for tomorrow, ARTICLE 19 submitted an expert opinion to the Istanbul 43rd Criminal Court of First Instance, in the case against journalist Baransel Ağca. Baransel Ağca faces charges of “publicly degrading religious values”. If convicted, Ağca faces from 6 months to 1 year in prison. In the expert opinion, ARTICLE 19 examines the legitimacy of the charges against international and European human rights standards on the right to freedom of expression, in particular concerning the notion of ‘religious insult’.
The criminal prosecution of Baransel Ağca, under Article 216/3 of the Turkish Penal Code, stems from a tweet by Ağca that humorously referenced the historical context of the prohibition of alcohol in Islam. Importantly, Ağca’s tweet was identified via so called ‘virtual patrolling’ – a method where law enforcement systematically monitors social media to detect perceived illegal or harmful content. The next hearing in the case is scheduled for tomorrow, 7 November 2023.
ARTICLE 19 considers that Ağca’s criminal prosecution violates his right to freedom of expression. We believe that Article 216/3 of the Turkish Penal Code, which forms the basis of Ağca’s prosecution, is incompatible with international and European human rights standards as it fails to satisfy the criteria of legality, necessity and proportionality and should therefore be repealed.
The expert opinion highlights the following key issues that the Istanbul 43rd Criminal Court of First Instance should consider in its deliberations of the case:
- International human rights bodies have repeatedly rejected the protection of religious beliefs as legitimate grounds for restricting free expression.
- The right to freedom of religion does not grant protection from offensive expressions. Only instances of religious hatred that incite violence, discrimination, or hostility against individuals can be used as a basis to limit free expression, none of which applies to Ağca’s tweet. Although in his tweet the journalist expressed a certain degree of mockery and ridicule in relation to the official interpretation of the relevant dogma, it contains no element of incitement to violence, discrimination or hostility. Nor did he express any hatred towards individuals of a particular faith or belief. Therefore the tweet should be considered within the ambit of protected speech under international standards.
- The prosecution’s reliance on “virtual patrolling”, the proactive social media monitoring by law enforcement authorities for evidence gathering, despite its annulment by the Turkish Constitutional Court, undermines the legality of the prosecution’s case. Irrespective of its legality in domestic law, the implications of virtual patrolling by law enforcement authorities raise significant concerns regarding the exercise of freedom of expression and the right to privacy.
ARTICLE 19 calls for the charges against Ağca to be dismissed in their entirety and for the abolition of the Article 216/3 of the Turkish Penal Code which unjustly limits expression under the guise of protecting religious values. ARTICLE 19 also calls for an end to unlawful surveillance practices that undermine the principles of a democratic society.