A bimonthly magazine on international affairs, edited in Germany's capital

Merkel’s Turkish Dilemma

A furious president, an outdated law, and an unrepentant comedian have caught Germany’s chancellor in a double bind.

German Chancellor Angela Merkel is allowing Turkish President Recep Tayyip Erdogan to press charges against a German television comedian who had fiercely mocked him. This decision isn’t winning her any friends. But in political terms, it is far less costly than if Turkey re-opened the transit routes for refugees headed for Germany.

Boehmermann_Screenshot Kopie

© Screenshot: zdf_neo

Having stirred up an enormous hullaballoo in German-Turkish relations, German television comedian Jan Böhmermann announced he would withdraw from the public eye for a while. “It’s a short television pause so that the public can concentrate on the things that really matter like the refugee crisis, videos about cats, and the love life of Sophia Thomalla [an actress],” Böhmermann announced, true to style, via Twitter.

Angela Merkel doesn’t enjoy any such privilege. Last week, the German chancellor faced the press to read out a carefully crafted declaration explaining why she was agreeing to Turkish President Recep Tayyip Erdogan’s demand to allow charges against Böhmermann for an alleged insult to his person and office.

“In a state of law, it is not the government’s job, but the task of the prosecution and the courts to balance the rights of a person and other issues against the freedom of the press and the freedom of the arts,” Merkel said.

In his show on German public television, Böhmermann had chanted a satirical poem about Erdogan, mixing vulgar verses about sex with goats and child pornography with references to the fate of the Kurdish minority in Turkey.

Erdogan reacted quickly by pressing double charges against Böhmermann. Not only are his lawyers taking the comedian to court for insult under ordinary German law, but he also requested that Böhmermann be prosecuted under paragraph 103 of the German criminal law code.

This is a provision that carries heavy punishment for insulting foreign heads of state. It is a curious law dating back to the foundation of the German empire in 1871 when it was drawn up to specifically protect foreign monarchs.

In 1953, this “lèse-majesté” clause was re-instated in the law of the Federal Republic, apparently at the particular request of the British occupational forces in Germany. It was widened to apply to representatives of foreign republics as well. Insulting a foreign head of state can be punished by up to three years in jail or by a fine, considerably harsher than insulting ordinary people under paragraph 185.

According to the logic of the law, paragraph 103 is meant to safeguard Germany’s international relations. As these are an executive matter, any case under this particular law needs the German government’s explicit authorization.

In the 1960s, several Cologne journalists were fined for mocking the Shah of Persia. The last known case dates from 2007, when a private citizen was fined for insulting the president of Switzerland. Yet the legal base of paragraph 103 may be shaky: in 2002, the European Court of Human Rights struck down a case against the Moroccan king based on a very similar law in France which was then abolished.

Costly Permission

In Erdogan’s case, Merkel ended up giving permission for the case to go ahead – but it is costing her. Not only the opposition parties, but her junior partner in government, the Social Democrats (SPD), have publicly disapproved of her decision.

Even within her own party, many think it wrong. “I regret this decision and hope that Turkey will be taught a lesson on the freedom of opinion,” said Wolfgang Bosbach, a senior CDU politician in the Bundestag.

Public opinion isn’t happy, either. Granting Erdogan’s request has a nasty smell of selling out to a foreign despot. If Merkel is seen to help him crack down on press freedom in Germany, too, that is not going to go down well. Indeed, a quick poll published by Sunday newspaper BILD am Sonntag showed 66 percent disapproving Merkel’s decision. Only 22 percent considered it appropriate.

Yet Merkel was caught in a dilemma. She desperately needs Erdogan’s good will to keep the flow of refugees to Germany and Europe under control. A disgruntled Turkish president could go back on his deal with the EU and re-open the passage for refugees across the Eastern Mediterranean. Satisfying Erdogan was made even more urgent because the German chancellor is planning an official visit to Turkey on April 23.

So Merkel’s calculation is clear: the huff-and-puff over Böhmermann is unpleasant but hopefully short-lived. In contrast, a massive surge in the number of refugees applying for asylum in Germany would do much more serious damage to Merkel’s standing with her voters and her party.

Yet some things are best not talked about. In her announcement, the chancellor was careful not to mention the word “refugee” even once. Instead, she stressed the importance of good relations with Turkey. She also said that her decision to authorize the prosecution did not amount to prejudging the case, but served to hand over the legal appreciation to an independent justice system.

And with her well-honed political instinct, she announced that “lèse-majesté” paragraph 103 will be abolished by 2018 at the latest. This should help to make clear how much she has disliked being put in this situation; it also ensures that none of her successors will ever find themselves in a similar pinch. Finally, it means that if only the legal process against Böhmermann is sufficiently drawn out, he will only be taken to court according to the milder and more democratic paragraph 185.

In effect, the Böhmermann affair may end up having opposite effects on Turkey and on Germany. In his own country, Erdogan will certainly use the chancellor’s decision to justify his hard line against freedom of expression and any attempt at irony or satire. In Germany, in contrast, it will help rid the country of an outdated and undemocratic law.