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(Berlin) – German authorities should defend freedom of speech, even if the contents of the speech are offensive to some, Human Rights Watch said today. The authorities should not afford heads of state greater privilege against provocative speech.

Jan Boehmermann, host of the late-night "Neo Magazin Royale" on the public ZDF channel is pictured during a TV show of Markus Lanz in Hamburg, Germany on March 17, 2012.  © 2012 Reuters

Responding to a demand for action by President Recep Tayyip Erdoğan of Turkey, Chancellor Angela Merkel said on April 15, 2016, that prosecutors would be allowed to pursue charges against a German satirist who wrote a highly offensive poem about Erdoğan. Merkel referred the case to prosecutors under article 103 of Germany’s criminal code which makes it illegal to insult foreign heads of state, with a penalty of up to five years in prison. Merkel said this article was “dispensable” and that her government would draft a proposal to remove it from the criminal code by 2018.

“By giving the go-ahead for a possible prosecution while acknowledging the law should be repealed, the German government is passing the buck for protecting free speech to the courts, instead of upholding its own human rights obligations,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “The government is contributing to the violation of free speech that a potential prosecution would constitute.”

The case centers on Jan Böhmermann, a satirist who recited the poem on German television on March 31. He admitted the poem was offensive and said he intended to test the limits of free speech in Germany. The Turkish government triggered the possible legal action under article 103 by submitting a formal request on April 10 to the German Foreign Ministry. Under the terms of the little-used article, the government was then required to decide whether to allow prosecutors to take up the case. Erdogan has also filed a private defamation case against Böhmermann in Germany.

Freedom of expression is protected in particular under Article 10 of the European Convention on Human Rights, to which both Germany and Turkey are parties. The European Court of Human Rights has made clear that the protection of free speech “is applicable not only to ‘information’ or ‘ideas’ that are regarded as inoffensive…but also to those that offend, shock or disturb the State or any sector of the population.”

The court has likewise emphasized that while criticism of politicians has limits, those limits “are wider as regards a politician than as regards a private individual,” and that politicians and public figures are “obliged to display a greater degree of tolerance in this context.” Specifically, with respect to the type of offense provided for in article 103, the court has ruled that, “The offence of insulting a foreign head of state is liable to inhibit freedom of expression without meeting any ‘pressing social need’ capable of justifying such a restriction” and “undermines freedom of expression.”

The context of speech is also important in assessing what limits are acceptable, and in this regard the poem, which could be considered vulgar, was written as part of a deliberately provocative, satirical comedy act and, as the court has noted: “The use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes,” and that, “Style constitutes part of communication as a form of expression and is as such protected together with the content of the expression.”

Respect for freedom of expression requires limiting criminalization of speech to offenses involving incitement to violence and imposing other restrictions only if they are strictly necessary and proportionate to serve a legitimate and lawful aim, Human Rights Watch said. In line with the case law of the European Court, criminalizing the kind of offending speech involved in this case violates freedom of expression as it is neither necessary nor proportionate.

Merkel noted that her decision “means neither a prejudgment of the person affected nor a decision about the limits of freedom of art, the press and opinion.” German opposition parties criticized Merkel for giving in to pressure from Erdoğan following the European Union’s signing of the refugee agreement with Turkey in March. Germany’s Social Democrats, Merkel’s coalition partners, said they opposed the chancellor’s decision to allow the case to proceed to prosecutors.

“The poem is certainly highly offensive, but it is in situations such as this when we need to stand up for protection of free speech,” Williamson said. “Germany bears responsibility for having such a bad law on the books and the sooner it is repealed, the better.”

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