Why Erdogan won't have last laugh after Merkel authorizes comedian case

Is censorship on the march in Germany? More likely, it's savvy diplomacy.

If you've been reading today's headlines about German Chancellor Angela Merkel's decision to allow Turkish President Recep Tayyip Erdogan to move ahead with his criminal complaint against comedian Jan Böhmermann, you might understandably think that censorship is on the march in Germany.

To recap the situation in brief, Mr. Böhmermann read a rather insulting poem about Mr. Erdogan on German public television. Erdogan, whose censorship of the press in his own country is increasingly concerning, took umbrage and demanded the German government punish the comedian.

Fortunately for Erdogan, Germany has a law on the book explicitly criminalizing "defamation" of foreign countries and heads of state. The law requires authorization from the German government to be enforced, which some hoped the chancellor would decline to provide. But permit the law's use she did today, much to the consternation of free speech advocates in Germany and abroad.

Naturally, much is being made of this as a quid pro quo between Mrs. Merkel and Erdogan. She is depending on him on to enforce a deal to resolve Europe's migration crisis and prevent Syrian and other refugees from traveling through Turkey to Germany. Merkel was almost certainly thinking about that deal when she decided to let the Böhmermann case proceed.

But there's little reason to think that Germany is suddenly going to become a bastion of censorship, or a new front in Erdogan's war on free speech. In fact, this looks like a fairly savvy move by Merkel, and one that will leave Erdogan unsatisfied.

The law

First, one needs to keep in mind the laws involved, and their hierarchy. Here's the relevant portion of the German criminal law that Erdogan is hoping to use against Böhmermann, Article 103 of the German penal code:

(1) Whoever insults a foreign head of state, or, with respect to his position, a member of a foreign government, who is in Germany in official capacity, or a head of a foreign diplomatic mission who is accredited in the federal territory, shall be punished with imprisonment for not more than three years or a fine, in case of a slanderous insult, with imprisonment from three months to five years.

That's relatively straightforward. But the problem with it becomes immediately obvious when placed next to Article 5 of German Basic Law, essentially Germany's constitution. It reads:

Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

Germany's Basic Law, just like the Constitution in the US, is the country's legal bedrock. What it says cannot be trumped by other laws. And in this instance, it seems to clearly contradict the prohibitions of the foreign-dignitary defamation law. Böhmermann was certainly "expressing and disseminating his opinions" with his satirical, if crude, poem. As such, he should be solidly inside Article 5's protections, which would mean German courts would rule in his favor.

But however unlikely it may be, let's say German courts do find for Erdogan, all the way up to Germany's Constitutional Court. Is Böhmermann in trouble? Not yet, because he has a yet higher authority he could turn to: the European Court of Human Rights (ECtHR). With Germany a signatory to the European Convention on Human Rights, which the ECtHR upholds, Böhmermann is able to bring a case against Germany that its hypothetical Article 103 conviction is a violation of human rights law.

And if that happens, the odds are again in Böhmermann's favor. Under Article 10 of the Convention, "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Böhmermann's poem almost certainly is an exercise of this right. And so the highest court in Europe would likely overturn his hypothetical Article 103 conviction.

And that's not to mention that Böhmermann wouldn't be in this fight alone. While the conviction might only affect him directly, human rights and free speech organizations across Europe, perhaps even around the world, would step to his defense. He would have no shortage of allies to carry out and underwrite the legal fight, however long it might take.

Brass tacks

So with all this legal firepower pointed against bringing a defamation claim against Böhmermann, why did Merkel authorize Article 103's use?

Actually, that firepower is likely why she did.

To be sure, Merkel is in a bind when it comes to dealing with Erdogan. The Turkish president is a critical partner for immigration control, Merkel's top priority, and is also frequently seen as rather thin-skinned. Denying use of Article 103 would certainly anger him, and likely endanger ongoing cooperation on the refugee crisis.

But authorizing Article 103 is actually fairly low risk for Merkel from a policy standpoint. To be sure, it will irk many Germans who see Böhmermann's insults as traditional Western free speech, and would like to snub Erdogan.

And the laws above show just how hard it will be for Erdogan to triumph legally against Böhmermann. Any prosecutors contemplating trying to convict Böhmermann will recognize that it's going to be a long, uphill battle that will likely end in defeat either in Germany's or Europe's highest courts. And it might not even get that far – it's quite possible that German trial judges will recognize the legal problems themselves and toss the case before a conviction is reached.

Quite simply, most prosecutors will conclude that pursuing a defamation claim against Böhmermann in defense of a foreign head of state who shows little interest in human rights laws in his own country is a dubious use of time, money, and resources – not to mention an effort that would irritate a large chunk of the German populace. 

So Merkel didn't choose to authorize prosecution and throw Böhmermann – and German free expression law – to the wolves. She chose to authorize prosecution with full expectation that the case would go nowhere. And that authorization is apt to end exactly where a rejection of authorization would have, with Böhmermann free on the streets. Most importantly for Merkel, it will leave the Turkey-EU migration deal intact.