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Turkish Constitutional Court’s Decision on Freedom of Expression

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IT & Communications
General

Recent development

The Turkish Constitutional Court’s new decision, No. 2019/19680 dated 22 February 2022, on the violation of a politician applicant’s (“Applicant“) freedom of expression was published in the Official Gazette on 13 April 2022. The Constitutional Court evaluated the limits of criticism toward political figures. The decision is available in Turkish here.

Background

During an event held by a political party, the Applicant gave a speech targeting the current minister of Foreign Affairs. The minister filed a compensation claim on the grounds that the speech given by the Applicant constitutes an attack on his personal rights. The court of first instance accepted the compensation claim by determining that the expression “America’s postal horse” constitutes an insult. The Court of Appeals reversed the judgement, but the court of first instance stood by its decision. The Supreme Court of Appeals agreed with the decision of the court of first instance. Accordingly, the Applicant brought the case before the Constitutional Court, alleging that his freedom of expression had been violated.

What does the decision cover?

The Constitutional Court evaluated the allegations within the scope of freedom of expression and the press, pointing out that the restrictions on rights and freedoms must: (i) have a lawful basis; (ii) rely on legitimate causes under the Constitution; and (iii) comply with the needs of a democratic society and the principle of proportionality according to Article 13 of the Constitution. The Constitutional Court focused its evaluations on compliance with the requirements of a democratic society.

The Constitutional Court reiterated its principle that restrictions on freedom of expression should be evaluated in the context of the case. Accordingly, the Constitutional Court evaluated the expression of the Applicant as a whole in the context of the speech and decided that the use of such expression does not constitute a personal attack.

The Constitutional Court further took into account the event and environment where the speech took place. The Constitutional Court stated that a politician’s speech to a limited group of party members was given with the purpose of motivating the party and gaining an advantage in the political arena. Further, the Constitutional Court pointed out that expressions used by politicians against each other are part of political speech and the leeway for criticism are wider for such expressions.

As for the expression “postal horse,” the Constitutional Court stated that the expression is disturbing. It emphasized, however, that freedom of expression covers not only harmless and accepted expressions but also offensive, shocking and disturbing expressions. The Constitutional Court therefore decided that the use of these expressions alone should not be basis for compensation. The Constitutional Court further pointed out that the Minister must be more tolerant to criticism than ordinary people due to his political status. In light of these evaluations, the Constitutional Court decided that the Applicant’s freedom of expression has been violated.

Conclusion

In the decision at hand, the Constitutional Court examined the limits of criticism against politicians and underlined that the expressions should be evaluated within the context of the case. In addition, the Constitutional Court reiterated its position that political figures should be more tolerant to criticism than ordinary citizens.