In his television show ‘Neo Magazin Royale’, Böhmermann performed in March 2015 the poem presenting Erdogan as a sadist and a pervert. Böhmermann says the poem is a satire and does not go beyond the realm of artistic freedom.
The television personality appealed against the regional court’s decision and wants to continue disseminating the whole poem. He calls it unacceptable to divide a piece of artistic creation into permitted and unpermitted parts. Erdogan responded to this with a so-called cross-appeal.
The eighteen-page petition filed by the Turkish president’s lawyer accuses Böhmermann of racism against not only the president but the entire Turkish nation. The justification text claims this is the only explanation for showing the Turkish flag and some Turkish inscriptions during the broadcasting of the poem. It was ‘an orgy-like insult committed with words that affected the complainant in the same way as Turks living in Germany have suffered racist insults for decades, especially from far-right elements’. Insults with sexual content ‘are especially serious in Turkish society’. Rather than ‘criticizing’ the Turkish president, the poem ‘debases him as a person. It deprives him of his human dignity’. This poem is not satire and is not subject to artistic freedom, the lawyer says. The artistic form was just an instrument for insulting the president.
While the Hamburg Regional Court accepted the poem as an artistic product, it declared that its banned sections insulted the Turkish president in his person so grievously that Böhmermann had no right to refer to either artistic freedom or freedom of opinion. It also declared that the remaining, permitted six lines of the poem were compatible with freedom of opinion. These lines contain an artistically sharpened critique of Erdogan’s politics. The lines raise genuine concerns within the president’s responsibility.
The incriminated lines of the poem were as follows: ‘Stupid and obtuse coward Erdogan, the president. (…) The man who beats up girls while wearing a rubber mask, (…) to suppress minorities (…) to trample on the Kurds, to beat up Christians’.
According to Attorney-at-Law Kaplan, it is doubtful whether ‘everything the regional court has declared permitted is indeed so’. The lawyer, however, mentions in detail only the lines about Erdogan beating up girls. This is a scene of sexual perversion. ‘Since the overall image of the poem is fraught with racist and sexist elements, listeners will link these statements with sexual behaviour rather than actual events in Turkey.’ The lawyer did not comment on the persecution of Kurds and Christians.
The Supreme Regional Court may decide the case with a ruling or at an oral hearing. The state prosecutor has closed the criminal proceeding brought against Böhmermann. Böhmermann cannot be accused of willfully intending to insult the Turkish president, which would be necessary grounds for establishing culpability.
The question whether there had been an insult to organizations and representatives of a foreign state was raised during the investigation. This is penalized by Article 103 of the Criminal Code of Germany. The Erdogan v Böhmermann lawsuit has started a debate on whether this provision is outdated or not. Several politicians argued for annulling it, including Chancellor Angela Merkel.
The Bundesrat has recently approved the relevant proposal. Accordingly, the Article will be removed effective from 1 January 2018.