On April 15, German chancellor Angela Merkel Launched Criminal Probe of Satirist Accused of “Insulting Turkey’s President”.

There is an obscure 19th century law on the books that makes it a crime for Germans to offend foreign heads of state.

Jan Böhmermann, an award-winning comedian and host of Neo Magazin Royale, a late-night talk show, is accused of insulting Turkey’s president Recep Tayyip Erdogan.

Erdogan himself requested charges be filed.

Merkel Feels the Heat

Bloomberg reports Merkel Feels Heat From Backing Prosecution of Erdogan Satirist.

Chancellor Angela Merkel, already weakened by Europe’s refugee crisis, came under fire during the weekend for granting a Turkish request to prosecute a German satirist who derided President Recep Tayyip Erdogan.

“The German government is passing the buck for protecting free speech to the courts, instead of upholding its own human rights obligations,” Hugh Williamson, Europe and Central Asia director at Human Rights Watch, said in a statement. “The government is contributing to the violation of free speech that a potential prosecution would constitute.”

Split Widens

Just 22 percent of 500 people polled by census group Emnid back Merkel’s decision, Bild am Sonntag said, with 66 percent responding it was wrong. The decision widened the split in her Christian Democratic-led government, with ministers among the junior-partner Social Democrats dissenting. Merkel made the final decision to advance the probe after failing to win consensus with the SPD.

Merkel “had no alternative” and was right to trust in the German judicial system to show Erdogan that the country’s courts are independent, Edo Reents, the culture and arts editor at Axel Springer SE’s daily Die Welt, wrote in a commentary.

Laws on the Books

Let’s investigate the idea Merkel had “no alternative” starting with The Guardian report Obscure German Law Gives Angela Merkel a Diplomatic Headache.

The legal oddity that allows Turkey’s president to do so is paragraph 103 of the German criminal code, concerning insults against organs or representatives of foreign states – a paragraph so rarely used that even many seasoned lawyers and politicians had never heard of it until this week.

“Paragraph 103 has been around for ever, but has rarely been used,” said Holger Heinen, a lawyer who completed his PhD on the subject.

Triggering the law requires both a notification from the offended party and an authorisation from the government. The former exists now that Erdoğan has personally registered his displeasure. The latter is Merkel’s dilemma. [Mish comment: This was clearly written before Merkel decided to let the prosecution go ahead].

Paragraph 103 goes back to the days when European diplomacy was still conducted by easily offended monarchs. In the penal code of 1871, lèse-majesté – an offence against the dignity of a reigning sovereign – was punishable with a lifelong spell in jail. Under Kaiser Wilhelm II, lèse-majesté was transformed into a broader law also forbidding denigration of non-royal foreign heads of state.

Insulting foreign heads of state remains a criminal offence not just in Germany but also in Italy, Poland and Switzerland. Denmark, the Netherlands, Norway and Spain have remnants of the lèse-majesté laws for royals in their criminal codes.

In most of the UK, defamation was decriminalised as recently as 2009. The Treason Felony Act 1848 – which makes it a criminal offence, punishable by life imprisonment, to advocate abolition of the monarchy in print, even by peaceful means – remains technically in force, but has not been deployed in a prosecution since 1879.

“The German penal code can be changed quickly, but not quickly enough to let off Böhmermann,” said Ralf Höcker, a media lawyer.

Höcker told the Guardian he expected the trial to go ahead, but that it was unlikely the comedian would end up in jail. Given that Böhmermann has no previous convictions, he would more likely be asked to pay a small fine or make a donation to charity.

No Alternative?

According to The Guardian, there was a clear choice. Merkel had it in her power to proceed of not proceed.

Merkel did not choose wisely.

Penalties

Looking further, a Spiegel article on Merkel’s Bind states the penalties.

In this instance, the Turkish government cited Paragraph 103 of the German Criminal Code, which can include the penalty of “imprisonment not exceeding three years” or a monetary fine in the case of a slanderous insult against a foreign head of state. In contrast to the complaint already filed by the Turkish government, these additional proceedings would require authorization by Germany’s federal government.

Turkish Crackdown

So once again we see Merkel had a choice. And check this out….

Erdogan’s actions in recent days come as little surprise. There are currently around 2,000 cases pending in Turkey in which the defendants are accused of insulting the president. No one, it seems, is immune from the accusation. Youth have even been charged on the basis of comments posted on Facebook and Twitter, and opposition leader Kemal Kilicdaroglu faced the government’s wrath after daring to call Erdogan a “tinpot dictator.”

Translating Satire

The language Böhmermann used was very crude. I won’t repeat it. However, this is another case where direct translation does not directly translate well.

In an email exchange, Acting Man blog writer Pater Tenebrarum said that in German, Böhmermann’s satire came across as extremely funny.

I don’t read or speak German so I cannot say directly. I do take his word for it.

I liken this to the situation in the US where black comedians can say all kinds of things derogatory to blacks, including certain words that might cause riots or mass uprisings if whites said the same thing.

In this case, not only is there a foreign language translation issue, there is a satire translation issue.

Finally, there is a strong need for political leaders to stand up to thugs rather than get into bed with them as Merkel did.

Mike “Mish” Shedlock