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Constitutional Court Issues Decisions on Freedom of Speech – August 2021

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Recent Development

The Constitutional Court issued two new decisions, nos. 2018/24311 (“First Application“) and 2018/15033 (“Second Application“), regarding the sanctions and measures taken against two applicants’ freedom of speech. The decisions were published in the Official Gazette on 12 August 2021.

Background

In the First Application, the applicant, who is the lawyer of the defendant in a custody case, was fined by the Bar Association due to the statements used against the counter-party in their lawsuit petition, which are based on the information provided by their defendant. The judgment of the Bar Association was finalized after the objections of the First Applicant were rejected by the Union of Turkish Bar Associations, administrative courts and the appellate court, respectively. The First Applicant argued that the punishments violated their freedom of speech guaranteed by the Constitution of Turkey.

In the Second Application, the applicant, who is a manager at a school, posted three comments targeting the complainant on a news website. Upon the complainant’s complaint, the applicant was sentenced to imprisonment due to defamation and disqualified to hold public office; and the judgment was finalized before the appellate court. The applicant argued that the judgment violated their freedom of speech, right to a fair trial, right to privacy and right to property guaranteed by the Constitution of Turkey. The Constitutional Court evaluated the allegations as a whole within the scope of freedom of speech.

What Do the Decisions Say?

The Constitutional Court stated in both Applications that the restrictions of rights and freedoms guaranteed by the Constitution of Turkey must have lawful basis, rely on legitimate causes under the Constitution and comply with the needs of a democratic society and the principle of proportionality according to Article 13 of the Constitution of Turkey.

The statement of the First Applicant subject to the complaint was “The defendant father is not an honest person, he is a liar and a cheater. He does not like to work and is engaged in illegitimate business.” The Constitutional Court assessed this statement in the context of the case and decided that the statement is related to the subject of the lawsuit, contributes to the judge’s opinion, and does not intend to damage the opposing party since it’s only mentioned in the lawsuit petition. The Constitutional Court further stated that such statement constitutes part of the right to a fair trial and, therefore, must have a higher protection.

Accordingly, the Constitutional Court ruled that such actions taken against the freedom of speech do not comply with the needs of a democratic society. The disciplinary proceedings with respect to statements used by lawyers in lawsuit petitions should be limited to exceptional cases in order not to cause a deterrent effect on lawyers’ rights and duties to freely defend their clients. The Constitutional Court’s decision on the First Application is available online here (in Turkish).

Similarly, in the Second Application, the Constitutional Court evaluated the application within the context of lawful basis, legitimate cause, needs of a democratic society and proportionality. The Constitutional Court noted that the court of first instance must take into account the events as a whole and establish a balance between freedom of speech and protection of the complainant’s reputation. In this regard, the Constitutional Court opined that the court of first instance failed to demonstrate that the punishment against the applicant corresponds to a compelling need. The Constitutional Court decided that imposing imprisonment (while other milder measures are available) due to the use of words, such as “[Complainant]’s fickle-minded followers are just out of control” and “all these news about you, [Complainant], in your face!” that were found ‘rude’ by the court of first instance is not proportionate to the protection of the complainant’s reputation. In this respect, the Court ruled that the applicant’s freedom of speech was violated. The Constitutional Court’s decision on the Second Application is available online here (in Turkish).

Conclusion
In assessing whether the sanctions and measures taken against the freedom of speech comply with the needs of a democratic society, the Constitutional Court stated that these actions must be adequate in accomplishing their purposes, taken as a last resort, and represent the mildest measure applicable. Accordingly, the public authorities must provide relevant and sufficient grounds to demonstrate that any measure or sanction they take against the freedom of speech complies with the needs of democratic society and must be exceptional for some cases.