For further information,
please contact:

Senior Associate

Legal Alerts
11/09/2021 https://www.esin.av.tr/wp-content/themes/esin/images/esin.jpg

Constitutional Court Issues a New Decision on the Freedom of Speech

Legal Alerts
IT & Communications
General

Recent Development

The Constitutional Court issued its decision no. 2017/5809 regarding the sanctions taken against an applicant’s freedom of speech. The decision was published in the Official Gazette on March 25, 2020. The court ruled that the applicant’s punishment for their statements in an interview violated their freedom of speech. The Constitutional Court’s decision is available here (in Turkish).

Background

The applicant is an educator (“Applicant“) who gave a newspaper interview regarding the national high school entrance exam (tr. TEOG) where they criticized the competency and ability of the personnel in the relevant general directorate of the Ministry of Education. The Applicant claimed that there could be a parallel organization structured within the Ministry, i.e. a group of people occupying and controlling the Ministry, and emphasized the erroneous questions in the exam and administrative infractions within the Ministry. The Ministry filed a criminal complaint against the Applicant and the relevant court of first instance punished the Applicant with imprisonment. The Applicant argued that the punishments violated their freedom of speech guaranteed by the Turkish Constitution.

What Does the Decision Say?

The Constitutional Court stated that the restrictions of rights and freedoms guaranteed by the Turkish Constitution must rely on legitimate causes stated in the Constitution, and comply with the needs of a democratic society and the principle of proportionality. In other words, any action taken against the freedom of speech must fulfill pressing social needs and be proportionate.

The Constitutional Court also stated that, when taking actions against the freedom of speech to protect the reputation of an individual or an institution, courts must make their assessments based on certain criteria, such as (i) who the statements targeted; (ii) the type, content, form and consequences of the statements in the news; (iii) the statements’ value in informing the public; (iv) whether the statements in the publication have a factual basis; and (v) the publication’s impact on the reputation of the individual or the institution compared to the measures against the freedom of speech.

The Constitutional Court assessed that the court of first instance did not evaluate the Applicant’s statements in the integrity and overlooked the context of the statements. The Court noted that the TEOG exam concerned the majority of the public, and has been in Turkey’s agenda for a long time. Accordingly, the Court stated that it is natural in a democratic society for the Applicant, an educator, to voice their opinions in this matter.

The Constitutional Court also emphasized the importance of public officers’ actions and stated that public officers must exercise tolerance against criticisms due to the impact of their actions on the community. Additionally, the Constitutional Court expressed that the punishment for the Applicant’s criticism and comments aimed at public officers may have a deterrent impact on the community and intimidate others from voicing different opinions.

In light of the above, the Constitutional Court opined that the court of first instance failed to demonstrate that the punishment against the Applicant corresponds to a social need, ruling that the Applicant’s freedom of speech was violated.

Conclusion

In assessing the sanctions taken against an applicant’s freedom of speech, the Constitutional Court reiterated that the balance between an individual and institution’s reputation must be maintained and that the courts should assess this balance on a case-by-case basis. The Constitutional Court opined that there should be fewer limitations on the freedom of speech when it concerns the criticism of and comments aimed at public officers.

Recommended for you