Navigating the Complexities of Hate Speech Laws: A Comparative Analysis of Legal Developments and Judicial Practices

Timuçin Köprülü*

In both criminal law and human rights law, the crime of inciting hatred and hostility has been the subject of numerous qualified studies by our colleagues. These studies examine the elements of the crime type and its connection to freedom of expression in particular. In this article, I will not repeat the elements of the crime extensively, but rather emphasize the emergence of this crime type in both Europe and Turkey and its application forms in modern judicial practice.

Article 216 of the TCK criminalizes three separate acts related to incitement to hatred and hostility and humiliation. These are:

1. Publicly inciting one part of the population against another based on social class, race, religion, sect, or regional characteristics, creating a clear and imminent danger to public safety,
2. Publicly humiliating a part of the population based on social class, race, religion, sect, gender, or regional differences,
3. Publicly humiliating the religious values embraced by a part of the population in a manner likely to disturb public peace.

Although not explicitly mentioned in the article, discriminatory motivations often play a role in committing this crime type, appearing sometimes as a manifestation of hate speech. In the first and third clauses, mere incitement or humiliation is not enough; it must create a clear and imminent danger to public safety or be likely to disturb public peace. The second clause does not require the conditions specified in the other clauses, and the act of humiliation must be public and in the manner specified in the article.

When looking at the development of this crime in Turkish law, similar regulations can be seen during the Ottoman period, including: inciting the public to armed conflict against others, leading the public to disobedience against law, order, and the state, writing articles inciting one social class against another, and making speeches in public places to this effect. After the establishment of the Republic, Article 312 of the TCK No. 765 initially resembled the regulation from the Ottoman period. A change in 1953 during the Democrat Party era added the act of committing the crime through the press as an aggravating factor. After the coup of September 12, 1981, the article was translated into modern Turkish, and incitement based on class, race, religion, sect, and regional differences was included in the legal text. However, the presence of a danger to public safety was not regulated as an element of the crime; it was determined as an aggravating factor. In 2002, changes were made in line with EU harmonization laws, making it an essential element of the crime for the incitement to potentially lead to a danger to public order. The regulation appears as described above in the TCK No. 5237, which came into effect in 2005, replacing the old TCK.

Article 216 of the TCK finds parallels in foreign legal systems. For instance, the Italian Penal Code (Article 145) criminalizes publicly inciting hatred between social classes, while the Spanish Penal Code’s Article 510 offers one of the broadest regulations. This article directly or indirectly punishes hate, hostility, and discrimination against a group, including racist, anti-Semitic, anti-Roma, or ideological, religious, ethnic, gender, sexual orientation, or sexual identity reasons, as well as poverty, illness, or disability with imprisonment and fines. The German Penal Code’s Article 130, which has undergone various changes since 1960, prohibits inciting hatred and hostility against a section of the community in a manner likely to disturb public peace.

The development of human rights law, especially after World War II, to prevent the recurrence of the war’s painful legacy, is undeniable. There is a view that the milestone for punishing or banning hate speech against minority groups in fundamental human rights texts dates from this period. However, according to Goldberg, the punishment of hate speech dates back much earlier and is not necessarily connected to the concept of human rights. Regulations punishing incitement to hatred have been present in both German and European law since the mid-19th century, not to protect the weak and oppressed but to suppress political opposition in a revolutionary climate.

The first modern penalties for hate speech were influenced by British Treason Laws and enacted in France, aimed at countering the emerging socialist and labor movements. After the revolutions of 1848, regulations punishing those who incited violence between different social classes to endanger public peace reached the German states and were included in their laws. However, again, the purpose of these regulations was not to protect rights but to maintain order and suppress political opposition. As a result, instead of protecting social differences, hate incitement laws of that era were used to suppress class, ethnic, national, and political differences. Indeed, this law was so associated with government campaigns against organized labor movements that it was termed the Klassenkampfparagraph. Prosecutors also used Article 130 during the Kulturkampf against Catholics and later against Polish nationalists in Prussia’s eastern regions. Diplomat Philip Frederick Alexander, a close friend of German Emperor Wilhelm II, even acknowledged that the targets of this article were those seeking to overthrow the state, not just supporting atheism but also pursuing the establishment of a red republic and inciting workers against other classes.

With the Nazis’ rise to power in 1933, the enactment of discriminatory laws against Jews and Roman-Sinti, and particularly the publication of propaganda films and materials calling for hatred and violence against these groups, demonstrated that the genocide against both groups started with words, showing that the relevant legal provision was ineffective. As an example, the Nuremberg Trials’ verdict against Julius Streicher, owner of Der Stürmer magazine, is significant: “Through his speeches, writings, and publications, he infected the German mind with the virus of anti-Semitism and incited the German people to destruction. In 1935, Der Stürmer reached a circulation of 600,000, each issue often filled with vulgar and repulsive articles.”

In Italy, different views emerged on the application of the crime of creating enmity between social groups under Article 247 of the 1889 Zanardelli Law. This law did not contain special articles preventing anarchism and communism, leading to the application of the relevant provision to such acts. However, the judiciary’s general attitude has been that class struggle is a normal social phenomenon, and unless it creates enmity between classes, it cannot be punished.

In contemporary Turkey, demeaning or inciting hatred and hostility due to religious, political, social, sectarian, or ethnic differences has almost become a “normal” part of everyday life in both political and social contexts. An average Turkish citizen has witnessed several times how political speeches, whether related to the theme of “tolerating the created because of the Creator” or not, can suddenly turn into hate speech. Some citizens, particularly active on social media, are seen not to remain passive in witnessing these events. However, as a lawyer, our observation is that individuals who engage in such rhetoric rarely fall into the judicial net. On the other hand, political, social, or religious criticisms, which are inherently expected to be harsh, can easily enter the judiciary’s radar.

In other countries, statements that would be easily punishable are characterized as freedom of expression by the judiciary, while in the mentioned countries, expressions that would not even be investigated are subject to prosecution. This suggests that the stance taken depends more on who makes the statement rather than whether the statements constitute a crime, a conclusion confirmed by examples encountered in practice. It is possible to say that there is a judicial problem in this regard.

The point at which a statement becomes incitement to hatred and hostility, a harsh critique, a counter-argument, or a defense of a right is of great importance in the judiciary’s interpretation. The state’s reflex to protect itself and its fundamental institutions against everything, all kinds of opposition, and diversity creates its own judiciary. This shows that any expression of thought and criticism related to values and institutions regarded as sacred can encounter great intolerance and the threat of punishment.

In current judicial practice, there seems to be no difference between the original reflex of the norm’s application or non-application and the way it is applied today. Indeed, a crime type that claims to protect public peace seems to be trying to keep those it should protect or the opposition under the threat of punishment.

Thirty to forty years ago, Articles 141, 142, and 163 of the old Turkish Penal Code were on the agenda. Ten to fifteen years ago, Article 301 was frequently discussed. However, we now see that these are no longer in fashion. As the catalog of TCK and TMK expands according to the conditions of the era, new provisions can be found among the pages. Unfortunately, whether these new trends fit the person or suit them is not a matter of concern.

• Timucin Koprulu is a Professor of Law and Criminal Justice at Atilim University in Turkey.
• This artice was first published in Birikim Magazine in Turkish and translated into English by Politurco.

1. For more on hate speech in the context of inciting hatred and hostility, see Tünay Aras, “Nefret Söylemi Bağlamında Halkı Kin ve Düşmanlığa Tahrik Suçu”, 2016, p. 2.
2. For similar criminal provisions in Ottoman law, see Tünay Aras, ibid., p. 208.
3. For more on the dangers of abstract danger crimes in criminal law and their shift towards a subjective approach that emphasizes the will of the perpetrator, see Tünay Aras, ibid., p. 212.
4. For legislation on hostility among social classes first appearing in French law, see Çetin Özek, “Türk-İtalyan Ceza Hukukunda Sosyal Sınıf Kavramı”, İstanbul Üniversitesi Mukayeseli Hukuk Araştırmaları Dergisi, 1967, 1(1): 28.
5. For a detailed discussion on hate speech and identity politics in Germany from 1848 to 1914, see Ann Goldberg, “Hate Speech and Identity Politics in Germany, 1848-1914”, Central European History, 2015, 48(04): 481.
6. For the impact of Nürnberg Trials and the prosecution of Julius Streicher, and the approach towards hate speech laws during different periods, refer to Ann Goldberg, ibid., p. 488.
7. For interpretations of the Italian law on inciting enmity among social classes and its application, see Çetin Özek, ibid., pp. 29-30.
8. For the Venice Commission’s 2016 report on the application of TCK Article 216 in the context of ECtHR decisions, see https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2016)002-e.
9. For an analysis of changes made to Articles 159 and 312 of the Turkish Penal Code, see Türkan Yalçın, “Türk Ceza Kanunu’nun 159. ve 312. Maddelerinde Yapılan Değişikliklerin Anlamı”, Ankara Üniversitesi Hukuk Fakültesi Dergisi, 2003, 52(1): 99.
10. For a discussion on the offenses of public scorn and insult, see Türkan Yalçın, Alenen Tahkir ve Tezyif Suçları (ETCK 159/1-YTCK 301/1-2), 2006, second edition, p. 38.
11. For an article by Prof. Dr. Türkan Yalçın on who is protected by Article 216/1 of the Penal Code, titled “I Hate Therefore I Exist”, see https://birikimdergisi.com/guncel/11136/nefret-ediyorum-oyleyse-varim.

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