Insulting The Turkish Head Of State: Turkish Prosecutors Seek Maximum Prison Sentence For Knicks Center Enes Kanter

By: Michael Moran  

I.   Introduction

Earlier in 2017, the Turkish government issued an arrest warrant for National Basketball Association player Enes Kanter, who at the time played for the Oklahoma City Thunder.[1] The arrest warrant was largely based on Kanter’s open criticism of Turkish President Recep Tayyip Erdoğan and support of Fethullah Gulen, a self-exiled spiritual leader living in Pennsylvania’s Pocono Mountains who was assigned fault for the military coup that climaxed in the streets of Ankara and Istanbul in 2016.[2] Kanter was detained at a Romanian airport after the arrest warrant specified that Kanter was involved in a terrorist group, and as a result, the Turkish government revoked Kanter’s passport.[3] Fortunately, Kanter was able to return to the United States on a green card (i.e., permanent resident status) that he had previously acquired from American immigration services.[4]

In December 2017, Turkish prosecutors announced that they would be seeking “a lengthy prison term” for Kanter on insult charges against President Erdoğan after a series of tweets published by Kanter between May and June 2016.[5] Notwithstanding the criminal charges and being tried in absentia by the Turkish judiciary, Kanter appears unperturbed by Turkish prosecutors and Erdoğan, who Kanter has condemned as “the Hitler of our century” because Erdoğan “staged a fake coup”[6] that resulted in imprisoning and effectively eliminating the regime’s political opposition.[7]

II.         Background

The legitimacy of Turkey’s speech freedoms has been suspect by international observers since President Erdoğan’s regime has “aggressively used the penal code, criminal defamation legislation, and the country’s antiterrorism law to punish critical reporting.”[8] In 2016, Freedom House categorized Turkey’s press freedom status as “not free” and highlighted the country’s abysmal scores for legal and political environments.[9] Nonetheless, the Turkish Constitution enumerates, “Everyone has the right to freedom of thought and opinion. No one shall be compelled to reveal his thoughts and opinions for any reason or purpose, nor shall anyone be blamed or accused on account of his thoughts and opinions.”[10] Moreover, Article 26 states that an individual’s thoughts and opinions may be disseminated “in writing or in pictures or through other media, individually or collectively.”[11] Article 26 provides an exception to the general constitutional principle regarding free speech, which allows for restriction of this right in cases of “protecting national security, public order and public safety, the basic characteristics of the Republic … protecting the reputation … of others … or ensuring the proper functioning of the judiciary.”[12]

Against this factual and legal backdrop, Turkish prosecutors are actively seeking a prison term against Enes Kanter on the basis of insulting the Turkish head of state. The applicable law Kanter allegedly violated is Article 299 of Turkey’s Penal Code, which dictates, “Any person who insults the President of the Republic shall be sentenced to a penalty of imprisonment for a term of one to four years.”[13] In cases involving offenses that were committed in public, the penalty imposed shall be increased by one-sixth.[14] In Kanter’s imminent in absentia prosecution, Turkish prosecutors are likely to apply Article 299 in light of the constitutional exception to free speech listed in Article 26 to protect President Erdoğan’s personal and official reputation, which will prospectively broaden the regime’s grip on its citizens and authorize future curtailments on free speech.

III.         Analysis: The Current State of Affairs and the Possibility of Extradition

A.   Prosecution Against Enes Kanter

By prosecuting Enes Kanter for essentially expressing his personal political thoughts and opinions about President Erdoğan on social media (i.e., a form of “other media” under Article 26 of the Turkish Constitution), the Turkish government’s actions affirm the notion that the country’s constitutional guarantee of freedom of expression is “only partially upheld in practice.”[15] This fact is evidenced from the number of criminal convictions for insulting the Turkish head of state; for example, in 2015, Turkey’s Ministry of Justice reported that there were 238 convictions pursuant to Article 299.[16] Furthermore, the indictment against Kanter opines that Kanter used his social media platform—which boasts over 526,000 Twitter followers—to “defame and deride” President Erdoğan.[17]

Both Kanter and his current team, the New York Knicks, are cognizant of the indictment against Kanter.[18] Kanter, who grew up in Turkey, remains unbothered by the charges and potential imprisonment if he is convicted and ever returns to Turkey.[19] Instead, upon learning about the potential of a four-year prison sentence in a Turkish jail where he would most certainly endure torture or serious bodily harm, Kanter commented, “Only four years? All the trash I’ve been talking?”[20] Moreover, legal commentators have considered whether Kanter can be legally extradited to Turkey if a Turkish court indeed finds Kanter guilty of insulting the country’s head of state.[21]

B.    Can Enes Kanter be Extradited to Turkey to Face Criminal Punishment?

As mentioned above, Enes Kanter is a green card holder in the United States, which means he is a permanent resident of the United States and may apply for citizenship after being a permanent resident for five years.[22] Even if Kanter does not apply for American citizenship, it is unlikely the American government will extradite Kanter to Turkey to face his criminal sentence for insulting President Erdoğan because of a 1979 extradition treaty signed between the two nations.[23] The treaty mandates that an individual is to be extradited to the requesting party for “[e]xtraditable offenses” that are “punishable under both the federal laws of the United States and the laws of Turkey by deprivation of liberty at least for a period exceeding one year or by a more severe penalty.”[24] Moreover, extradition shall not be granted in cases where the requested party (i.e., the United States) finds the extradition request to be “of a political character or an offense connected with such an offense.”[25] In short, an individual cannot be extradited to the requesting party merely “on account of his political opinions.”[26]

In applying this international treaty, Enes Kanter will not likely be extradited to Turkey because insulting a head of state on social media by itself is not a federal crime in the United States. Rather, defamation—the American equivalent to insult laws—in the United States is predominantly premised on tort law, which falls “under the umbrella of civil liability.”[27] In turn, Turkey’s pending prosecution of Kanter is likely to be construed as a criminal charge solely on the basis of Kanter’s political opinion of President Erdoğan, given the documented political animosity the two individuals have against each other.[28]

IV.         Conclusion

The recent development regarding Enes Kanter and President Erdoğan shows that the Erdoğan regime will take any steps necessary to solidify political power. In doing so, President Erdoğan has shown that his regime will suppress political dissent, even if that means unduly restricting Turkish citizens’ constitutional right to freedom of thought and opinion. Moreover, Erdoğan’s brutal suppression is exemplified from the regime’s violent crackdown of the military coup that was staged in Ankara and Istanbul in 2016.[29] Fortunately for Kanter, however, the 1979 extradition treaty between the United States and Turkey will likely prohibit Turkey from having Kanter extradited to Turkey to face his criminal charges and likely conviction for insulting the head of state.

If anything, Kanter’s rhetoric on social media has exposed the Erdoğan regime and the undemocratic principles that it has employed to solidify and legitimize its power at the expense of the “innocent people in Turkey.”[30] Once brought into the international limelight, internal reform can hopefully be brought about to combat the “sustained and increasing attack” that has resulted from criticism of the Turkish government since the failed coup.[31] In the meantime, do not expect Kanter to willingly return to Turkey with his cancelled Turkish passport or leave the United States, with the exception of playing away games against the Toronto Raptors.[32]

 

[1] Royce Young, Enes Kanter Says Father Held in Turkey ‘Because of my Criticism of the Ruling Party, ESPN (June 6, 2017), http://www.espn.com/nba/story/_/id/19521366/enes-kanter-oklahoma-city-thunder-says-turkish-government-arrested-father-mehmet-kanter.

[2] Id.

[3] Id.

[4] Id.

[5] Matt Bonesteel, Turkey Wants to Imprison Knicks’ Enes Kanter for More than Four Years over Presidential Insults, Wash. Post (Dec. 20, 2017), https://www.washingtonpost.com/news/early-lead/wp/2017/12/20/turkey-wants-to-imprison-knicks-enes-kanter-for-more-than-four-years-over-presidential-insults/?utm_term=.ea433fb520a4.

[6] Kanter was referring to the abovementioned coup in 2016.

[7] Ben Rohrbach, Turkish Government Seeks 4-year Prison Sentence for Knicks Center Enes Kanter, Aol (Dec. 20, 2017, 4:13 PM), https://www.aol.com/article/news/2017/12/20/turkish-government-seeks-4-year-prison-sentence-for-knicks-center-enes-kanter/23313491/.

[8] Turkey, Freedom House, https://freedomhouse.org/report/freedom-press/2016/turkey (last visited Dec. 22, 2017).

[9] Id. Freedom House indicated that Turkey’s net freedom status and freedom in the world status as “partly free.” Id.

[10] Türkiye Cumhuriyeti Anayasasi [The Constitution of the Republic of Turkey] Nov. 7, 1982, ch. 2, art. 25 (Turk.).

[11] Id. at art. 26 (emphasis added).

[12] Id.

[13] Penal Code of Turkey art. 299(1).

[14] Id. at art. 299(2).

[15] Turkey, supra note 8.

[16] Turkey: Criminal Statistics, IPI, http://legaldb.freemedia.at/legal-database/turkey/ (last visited Dec. 22, 2017).

[17] Turkey Wants Enes Kanter Jailed for Insulting President Erdogan, ABS-CBN News (Dec. 21, 2017, 10:24 AM), http://news.abs-cbn.com/sports/12/21/17/turkey-wants-enes-kanter-jailed-for-insulting-president-erdogan.

[18] See Turkey Seeking 4-year Prison Sentence for Enes Kanter for Insulting President Erdogan, ESPN (Dec. 21, 2017), http://www.espn.com/nba/story/_/id/21825111/turkey-seeks-jail-term-knicks-enes-kanter-insulting-turkish-president-recep-tayyip-erdogan.

[19] See id.

[20] Id. In defiance of the Turkish government, Kanter recently tweeted, “You cannot catch me. Hahaha. Don't waste your energy.” Enes Kanter (@Enes_Kanter), Twitter (May 26, 2017, 1:23 AM), https://twitter.com/Enes_Kanter/status/868019792866947072.

[21] See Michael McCann, Examining Enes Kanter’s Future Following Turkey’s Arrest Warrant, Sports Illustrated (May 26, 2017), https://www.si.com/nba/2017/05/26/enes-kanter-erdogan-turkey-arrest-warrant-turkish-government-us-citizenship-okc-thunder.

[22] See 8 U.S.C. § 1427(a).

[23] See Extradition and Mutual Assistance in Criminal Matters, U.S.-Turk., June 7, 1979, 32 U.S.T. 3111.

[24] Id. at art. 2(1)(a) (emphasis added).

[25] Id. at art. 3(1)(a).

[26] Id.

[27] Michael T. Moran, Note, Criminal Defamation and Public Insult Laws in the Republic of Poland: The Curtailing of Freedom of Expression, 26 Mich. St. Int’l L. Rev. (forthcoming 2018).

[28] See generally Young, supra note 1.

[29] See generally Gul Tuysuz & Eliott C. McLaughlin, Failed Coup in Turkey: What you Need to Know, CNN (July 18, 2016, 12:04 AM), http://www.cnn.com/2016/07/18/middleeast/turkey-failed-coup-explainer/index.html.

[30] McCann, supra note 21.

[31] Turkey: Journalism Is not a Crime: Crackdown on Media Freedom in Turkey, Amnesty Int’l (May 3, 2017), https://www.amnesty.org/en/documents/eur44/6055/2017/en/.

[32] See McCann, supra note 21.