SUBJECT OF THE APPLICATION
The application concerns the claim that the judicial fine imposed on a politician for criticising him violated his freedom of expression.
APPLICATION PROCESS
The application was submitted on 26/6/2018.
The application was submitted to the Commission after the preliminary administrative examination of the application form and annexes.
The Commission decided that the admissibility examination of the application shall be conducted by the Section.
It was decided by the Head of the Section to conduct the admissibility and merits examination of the application together.
A copy of the application documents was sent to the Ministry of Justice (Ministry) for information. The Ministry submitted its opinion.
The applicant submitted a declaration in due time against the opinion of the Ministry.
FACTS AND CIRCUMSTANCES
The facts, as stated in the application form and its annexes, are summarised as follows:
The applicant, born in 1961, resides in Kemer district of Antalya. The applicant, who is a columnist for a local newspaper, has also served as a member of the municipal council in the past. M.G., on the other hand, is an active politician who has served as the mayor of Kemer district for over ten years, including the period during which the statements subject to the application were used.
During the period in which the statements subject to the application were made, M.G. was detained and released on charges of bribery and extortion by coercion, his trials were ongoing in two different courts, and the public prosecutor had issued a proceeding against him for membership of the Fetullahist Terrorist Organisation (FETO) and/or Parallel State Structure (PDY), and the allegations regarding the events in question occupied the public agenda.
As a result of the proceedings against M.G., he was acquitted on 8/3/2019 for the offence of taking bribe and on 15/11/2018 for the offence of extortion by coercion on the grounds of insufficient evidence, and a decision of non-prosecution was issued on 18/4/2017 for the offence of FETÖ/PDY membership, again on the grounds of insufficient evidence.
On 9/5/2017, the applicant used the following statements in relation to the post made by a person named U.C.A. on the social networking site named Facebook, “ooo CHP has made a new municipality”
“Kılıçdaroğlu has and is protecting all foetöist zoning and rent thieves. Everyone knows and you know that this man is a zoning rent thief, your children and their father (if it is him) are all of them, but you blame others, but when it comes to CHP, you keep quiet, you blame everyone for sectarianism, but you defend Kemal no matter what he does, why? Because you are sectarian, look, when I call him a zoning rent thief, he does not sue everyone, why is he afraid, he has difficulty in finding a judge, now I will say that he is a zoning rent thief from the CHP and the CHP people who support him, come on, you sue him.”
M.G. filed a complaint against the applicant on 24/5/2017 requesting punishment for the offence of insult. Kemer Chief Public Prosecutor’s Office requested the applicant to be sentenced for the offence of insult with the indictment dated 6/7/2017.
On 19/1/2018, Kemer 2nd Criminal Court of First Instance (Court) sentenced the applicant to 7.080 TL judicial fine for insult. The relevant part of the reasoning of the judgement is as follows:
“… Since it was understood that the defendant’s posts were directed against the participant who was serving as the Mayor of Kemer Municipality at that time and that he insulted the participant by saying ‘zoning rent thief’ because of his duty, the defendant was sentenced as follows in accordance with Articles 125/3-a, 4 of the Turkish Penal Code, although the defendant’s defence counsel stated that the defendant was tried in the High Criminal Courts for bribery, extortion and rent sharing offences, Although the defendant also requested that the defendant is linked to Fetö, that the posts made are a due diligence, and that the files in question should be brought and examined, it was understood that the trial of the participant for the aforementioned crimes would not prevent the occurrence of the crime, and that the request of the defendant’s defence counsel was intended to prolong the trial, and the request was not fulfilled and the judgement was established as follows. “
Upon the applicant’s appeal, the 1st Criminal Chamber of the Antalya Regional Court of Appeal upheld the judgement with a judgement dated 13/3/2018. The relevant part of the reasoning of the judgement is as follows:
“…Since the defendant’s defence counsel’s objections on the grounds that his client’s words ‘zoning, rent thief’ were in the nature of heavy criticism, that the participant, who is a public official, has the obligation to endure heavy criticism, that the offence did not occur, that a verdict of acquittal should be given and other objections of appeal were not deemed appropriate…”
After the applicant learnt about this decision on 11/6/2018, he filed an individual application on 26/6/2018.
RELATED LAW
National Law
The relevant part of Article 125 of the Turkish Criminal Code dated 26/9/2004 and numbered 5237, entitled “Insult”, reads as follows
“(1) Any person who imputes to another person a concrete act or fact that may offend his honour, honour and dignity … or who attacks the honour, honour and dignity of another person by swearing shall be sentenced to imprisonment from three months to two years or to a judicial fine…
(2) If the act is committed by means of an audio, written or video message addressed to the victim, the penalty specified in the paragraph above shall be imposed.”
International Law
For the relevant international law, see Koray Çalışkan, B. No: 2014/4548, 5/12/2017, §§ 17-23; Kemal Kılıçdaroğlu, B. No: 2014/1577, 25/10/2017, §§ 29-37.
REVIEW AND JUSTIFICATION
The application was examined and considered at the meeting of the Court held on 15/12/2020:
Applicant’s Claims and Ministry’s Opinion
The applicant stated that there were no insulting expressions in his post and that he was trying to express the concrete facts that emerged with the ongoing lawsuits against M.G. for bribery and extortion offences with his expressions such as “zoning rent thief”. The applicant stated that politicians should be more tolerant of criticism against them and argued that his punishment for his posts criticising M.G. violated his freedom of expression and right to a fair trial.
In the opinion of the Ministry, it was stated that whether the punishment of the applicant for the words used by the applicant was an interference with the freedom of expression of the applicant should be evaluated by considering whether a fair balance was established between two conflicting values (freedom of expression and the right to honour and reputation).
In his statement against the opinion of the Ministry, the applicant stated that the aforementioned words did not contain insult, that they were within the limits of criticism and that politicians should be more tolerant towards criticism against them. The applicant argued that being penalised for the aforementioned remarks was a violation of his freedom of expression and right to a fair trial.
Assessment
The Constitutional Court is not bound by the legal characterisation of the events made by the applicant, and it itself appreciates the legal characterisation of the events and facts (Tahir Canan, B. No: 2012/969, 18/9/2013, § 16). It has been assessed that the applicant’s allegations should be examined as a whole within the scope of freedom of expression.
The relevant part of Article 26 of the Constitution entitled “Freedom of expression and dissemination of thought” reads as follows
“Everyone has the right to express and disseminate his thoughts and opinions individually or collectively by word, writing, picture or other means. This freedom includes the freedom to receive and impart information or ideas without interference by official authorities…
The exercise of these freedoms may be restricted … for the protection of the reputation or rights of others …”
In terms of Admissibility
It is necessary to decide that the claim regarding the violation of freedom of expression, which is not clearly groundless and there is no other reason to decide its inadmissibility, is admissible.
On the Merits
Existence of Intervention
The applicant was sentenced to a judicial fine for his posts about a politician. The court decision in question constituted an interference with the applicant’s freedom of expression.
Whether the interference constitutes a violation
The relevant part of Article 13 of the Constitution reads as follows:
“Fundamental rights and freedoms… may be restricted only for the reasons set out in the relevant articles of the Constitution and only by law. These limitations cannot be contrary to the requirements of the democratic social order and the principle of proportionality.”
It is necessary to determine whether the above-mentioned intervention fulfils the conditions stipulated in Article 13 of the Constitution, which are appropriate to the concrete application, such as being prescribed by law, being based on the reasons specified in the relevant article of the Constitution and being in conformity with the requirements of the democratic social order.
Legality
It is concluded that Article 125 of Law No. 5237 meets the criterion of limitation by law.
Legitimate Purpose
It was concluded that the interference was part of measures to protect the reputation or rights of others and pursued a legitimate aim.
Compliance with the requirements of the democratic social order
(1) Concept
In order for an interference with fundamental rights and freedoms to be considered compatible with the requirements of the democratic social order, it must meet a compelling social need and be a proportionate interference (Bekir Coşkun [GK], B. No: 2014/12151, 4/6/2015, §§ 53-55; Mehmet Ali Aydın [GK], B. No: 2013/9343, 4/6/2015, §§ 70-72). In order for it to be accepted that the measure constituting the intervention meets a compelling social need, it must be suitable for achieving the objective, it must manifest itself as the last resort and the lightest measure that can be taken (with some differences, see Bekir Coşkun, § 51; Mehmet Ali Aydın, § 68; Tansel Çölaşan, B. No: 2014/6128, 7/7/2015, § 51).
(2) The Importance of Freedom of Expression in a Democratic Society
Freedom of expression means having free access to news, information and opinions of others, not being condemned for one’s thoughts and opinions, and freely expressing, explaining, defending, transmitting and disseminating them, alone or with others, through various means. It is one of the requirements of a pluralist democratic order that ideas, including those that are opposed to the majority, be expressed through all kinds of means, that the ideas expressed are shared, that efforts are made to realise these ideas and to convince others of their realisation, and that these efforts are tolerated. Therefore, ensuring social and political pluralism depends on the peaceful and free expression of all kinds of thoughts. In this respect, freedom of expression and dissemination of thought is vital for the functioning of democracy (Bekir Coşkun, §§ 33-35; Mehmet Ali Aydın, §§ 42, 43; Tansel Çölaşan, §§ 35-38).
(3) Protection of the reputation or rights of others
According to the second paragraph of Article 26 of the Constitution, one of the reasons for the restriction of freedom of expression and one of the duties and responsibilities to be observed by those who use freedom of expression in this context is the protection of the honour or rights of others. An individual’s honour and reputation constitute a part of his/her personal identity and moral integrity and benefit from the protection of the first paragraph of Article 17 of the Constitution (İlhan Cihaner (2), B. No: 2013/5574, 30/6/2014, § 44). The State is obliged not to arbitrarily interfere with the honour and reputation of the individual and to prevent attacks by third parties (Nilgün Halloran, B. No: 2012/1184, 16/7/2014, § 41; Adnan Oktar (3), B. No: 2013/1123, 2/10/2013, § 33; Bekir Coşkun, § 45; Önder Balıkçı, B. No: 2014/6009, 15/2/2017, § 44).
In addition, the Constitutional Court has always emphasised that politicians, public figures and officials exercising public authority have to endure more criticism due to the function they perform and that the limits of criticism against them are much wider (with regard to politicians, see. As regards politicians, see Ergün Poyraz (2) [GK], B. No: 2013/8503, 27/10/2015, § 58; as regards officials exercising public authority, see Nilgün Halloran, § 45; as regards a recognised public prosecutor, see İlhan Cihaner (2), § 82; as regards a recognised public official preparing for politics, see Önder Balıkçı, § 42).
(4) A fair balance between freedom of expression and the right to protection of honour and reputation
In its previous judgments, the Constitutional Court has assessed whether a fair balance was observed between the applicant’s interfered freedom of expression and the protection of the plaintiff’s interfered right to honour and reputation due to the applicant’s statements (Nilgün Halloran, § 27; İlhan Cihaner (2), § 49). This is not an abstract assessment. In order to balance the conflicting rights, it is necessary to assess the type of expressions used by the applicant, their capacity to contribute to public debate, the nature and scope of the restrictions on the expressions, by whom the expressions were made, to whom they were directed, the degree of celebrity of the parties and the previous behaviour of the persons concerned, and the weight of the rights of the public and other persons against the expressions used (Nilgün Halloran, § 44; Ergün Poyraz (2), § 56; Kadir Sağdıç [GK], B. No: 2013/6617, 8/4/2015, §§ 58-66; İlhan Cihaner (2), §§ 66-73). For this purpose, the words spoken by the applicant must be evaluated within the holistic context of the incident, without detaching them from the whole speech and the context in which they were spoken (Nilgün Halloran, § 52; Önder Balıkçı, § 45).
The Constitutional Court will assess whether the conviction of the applicant to pay non-pecuniary damages due to the expressions used by the applicant in the circumstances of the concrete case corresponds to a compelling need, whether it is proportionate to the legitimate aim aimed to be realised, and whether the grounds put forward to justify this seem relevant and sufficient (for a similar assessment, see Sinan Baran, B. No: 2015/11494, 11/6/2018, § 38).
(5) Evaluation of the concrete case
In the case in question, the applicant, a simple individual, was sentenced to a judicial fine for his statements on a social networking site against M.G., who was the mayor at the time. In his post, the applicant, after criticising the development rent policies of the party to which M.G., the mayor of the district where he resided, belonged, complained that the members of the party were biased in the cases of development corruption in their own party and used expressions such as “development rent thief” referring to M.G..
The first point to be taken into consideration is the nature of the expressions used by the applicant. In the case, the expression “the thief of development rent” used by the applicant on a social networking site can be characterised as an accusation of a crime by literal interpretation. On the other hand, the entire post made by the applicant must be evaluated within the holism of the incident without being detached from the context in which it was said (Nilgün Halloran, § 52; Önder Balıkçı, § 45). First of all, to accept that he targeted the complainant and accused him of theft would be to attribute a meaning to the applicant’s words beyond what he intended. On the other hand, when his words are considered as a whole, the applicant implied that he was involved in municipal activities and zoning corruption by referring to the allegations (see § 10) which also occupied the public agenda. In democratic regimes, the question of whether the total wealth of the country is distributed fairly to the whole society is at the forefront of public debate. It should not be forgotten that it is only in democratic regimes where individuals or groups can express their grievances, ranging from the poor functioning of economic regulatory mechanisms to allegations of rent-seeking and corruption, without any hindrance (Deniz Karadeniz and Others, B. No: 2014/18001, 6/2/2020, § 129).
Another issue that needs to be examined is whether the statements subject to the application are characterised as explanations of material facts or value judgements. While statements considered as material facts are expected to be proved, the existence of a certain factual basis should be sought for statements considered as value judgements (Kadir Sağdıç, § 57; İlhan Cihaner (2), §§ 64). However, even if a statement consists entirely of value judgement, the proportionality of the interference must be determined according to whether the disputed statement is sufficiently supported by concrete elements. Because if it is not supported by concrete elements, the value judgement may be disproportionate (Cem Mermut, B. No: 2013/7861, 16/4/2015, § 48).
In the concrete case, it is clear that the expressions used by the applicant such as “zoning rent thief” are value judgements. In that case, the issues to be determined are whether the expressions used are based on a concrete factual basis, whether the defendant targeted the applicant without any reason, and whether the words and expressions used constitute a personal attack.
Considering the fact that M.G. had been prosecuted for bribery and extortion offences in relation to the allegations (see § 11), it is seen that the words used by the applicant implying that he was involved in municipal activities and zoning corruption had a factual basis and were not disproportionate. Moreover, considering the context in which the words subject to the complaint were used, it is obvious that they did not constitute an insult and were uttered for the purpose of criticism.
On the other hand, M.G. is a politician who is closely known and followed by the public and who was the mayor of the district where the applicant lived at the time of the events. In this framework, it is natural that he is under the close and close supervision of the voters of the district, including the applicant. Since the post in the case in question was directed at a politician known by the public, the limits of acceptable criticism are wider compared to an ordinary person (Kemal Kılıçdaroğlu, § 61; Nihat Zeybekçi, B. No: 2015/5633, 8/5/2019, § 38). Therefore, M.G. should show more tolerance to criticism against him than ordinary people. Moreover, there is no doubt that the applicant, who is a columnist in a local newspaper and has served as a member of the municipal council in the past, contributed to a debate of high public interest, given that he followed the agenda of the district and expressed his opinion on the current problems of the region.
It is clear that the language and style used is disturbing for the addressee. However, as adopted by the Constitutional Court in many of its decisions, freedom of expression, which is one of the necessary foundations of a democratic society and constitutes one of the basic conditions for the progress of society and the self-confidence of the individual, applies not only to information or ideas that are accepted or harmless or indifferent, but also to those that are offensive, shocking or disturbing (Emin Aydın (2), B. No: 2013/3178, 25/6/2015, § 35;Bekir Coşkun, § 52). The Constitutional Court has also accepted in many of its judgments that freedom of expression should be interpreted broadly to allow a degree of exaggeration and even provocation (Ali Suat Ertosun, B. No: 2013/1047, 15/4/2015, § 66; Zübeyde Füsun Üstel and others [GK], B. No: 2018/17635, 26/7/2019, § 102).
Despite the above findings, the Court concluded that the expression “zoning rent thief” in the applicant’s post constituted an offence of defamation and convicted the applicant without discussing the conditions at the time when the expressions subject to the application were used by the applicant, the context of the expression and the social position of the complainant. The Court made an assessment without considering the manner and reason for the expressions subject to the case, whether there was a background to the words spoken, whether they took place on the axis of a public debate (for similar assessments, see Nilgün Halloran, § 52; Önder Balıkçı, § 45). The Court did not attempt to strike a balance between the applicant’s freedom of expression and the complainant’s right to protection of honour and reputation; it only accepted that the statements in question constituted an offence of defamation based on an abstract assessment. Therefore, the grounds put forward by the Court for the applicant’s conviction cannot be considered relevant and sufficient for the interference with the applicant’s right to freedom of expression.
For the reasons explained, it must be decided that the freedom of expression guaranteed under Article 26 of the Constitution has been violated.
Regarding Article 50 of Law No. 6216
The relevant part of Article 50 of the Law no. 6216 dated 30/11/2011 on the Establishment and Trial Procedures of the Constitutional Court is as follows
“(1) At the end of the merits examination, it shall be decided whether the applicant’s right has been violated or not. In case of a judgement of violation, the necessary actions to be taken for the elimination of the violation and its consequences shall be ruled…
(2) If the detected violation is caused by a court decision, the file shall be sent to the relevant court for retrial in order to eliminate the violation and its consequences. In cases where there is no legal benefit in conducting a retrial, compensation may be awarded in favour of the applicant or the applicant may be directed to file a lawsuit before the general courts. The court obliged to conduct a retrial shall decide on the file, if possible, in a way to eliminate the violation and its consequences as explained by the Constitutional Court in its judgement of violation.”
The applicant requested the determination of the violation, retrial, 7.080 TL pecuniary compensation and 10.000 TL non-pecuniary compensation.
In the decision of the Constitutional Court in the case of Mehmet Doğan ([GK], B. No: 2014/8875, 7/6/2018), general principles were determined on how to eliminate the violation when a violation is concluded. In another decision of the Constitutional Court, along with these principles, the Constitutional Court also referred to the consequences of not fulfilling the decision of violation and pointed out that this situation would result in the continuation of the violation as well as a second violation of the relevant right (Aligül Alkaya and others (2), B. No: 2016/12506, 7/11/2019).
If it is decided that a fundamental right has been violated within the scope of an individual application, the basic rule in order to be able to talk about the elimination of the violation and its consequences is to ensure that it is restored as much as possible, that is, to return to the situation before the violation. For this purpose, firstly, the source of the violation must be determined and the ongoing violation must be stopped, the decision or action causing the violation and the consequences thereof must be eliminated, the material and moral damages caused by the violation, if any, must be compensated, and other measures deemed appropriate in this context must be taken (Mehmet Doğan, §§ 55, 57).
In cases where the violation is caused by a court decision or the court is unable to remedy the violation, the Constitutional Court, in accordance with paragraph (2) of Article 50 of the Law No. 6216 and subparagraph (a) of paragraph (1) of Article 79 of the Rules of Procedure of the Constitutional Court, decrees that a copy of the judgement be sent to the relevant court for retrial in order to eliminate the violation and its consequences. The aforementioned legal regulation, unlike similar legal institutions in procedural law, envisages a remedy that results in a retrial in order to eliminate the violation and is specific to the individual application. Therefore, when the Constitutional Court decides on retrial based on the decision of violation, unlike the institution of retrial in procedural law, the relevant court does not have any discretionary authority to accept the existence of the reason for retrial. Therefore, the legal obligation of the court to which such a judgement reaches is to carry out the necessary procedures to eliminate the consequences of the ongoing violation by ordering a retrial due to the violation decision of the Constitutional Court without waiting for the request of the relevant person (Mehmet Doğan, §§ 58, 59; Aligül Alkaya and others (2), §§ 57-59, 66, 67).
In the examined application, it was concluded that the reasoning of the Court’s decision to sentence the applicant to a judicial fine for the opinion he shared on social media was not relevant and sufficient, and therefore the applicant’s freedom of expression was violated. Therefore, it is understood that the violation in the concrete application arises from the court decision.
In this case, there is a legal interest in a retrial in order to eliminate the consequences of the violation of freedom of expression. The retrial to be held is aimed at eliminating the violation and its consequences according to paragraph (2) of Article 50 of the Law No. 6216, which contains a regulation specific to the individual application. In this context, the work to be done consists of issuing a retrial decision and issuing a new decision that eliminates the reasons that led the Constitutional Court to the conclusion of violation and complies with the principles stated in the violation decision. For this reason, it is necessary to decide to send a copy of the decision to Kemer 2nd Criminal Court of First Instance for retrial.
On the other hand, it is clear that the finding of a violation in the concrete case will be insufficient to compensate the damages suffered by the applicant. Therefore, in order to eliminate the violation with all its consequences within the framework of the principle of reinstatement, it should be decided to pay the applicant a net 6,000 TL non-pecuniary damages in return for the non-pecuniary damages that cannot be eliminated only by the determination of violation due to the violation of the right to freedom of expression.
It should be decided to pay the applicant a total of 3.894,70 TL judicial expenses, consisting of 294,70 TL fees and 3.600 TL attorney’s fee, determined from the documents in the file.
JUDGMENT
For the reasons explained
The claim of violation of freedom of expression is ACCEPTABLE,
that the freedom of expression guaranteed under Article 26 of the Constitution has been violated,
To send a copy of the decision to Kemer 2nd Criminal Court of First Instance (E.2017/320, K.2018/54) for retrial to eliminate the consequences of the violation of freedom of expression,
To pay the applicant 6.000 TL net non-pecuniary damages, and to reject the other claims for compensation,
3.894,70 TL in total, consisting of 294,70 TL fees and 3.600 TL attorney’s fee, be paid to the applicant,
Payments shall be made within four months from the date of the applicant’s application to the Ministry of Treasury and Finance following the notification of the decision, and in case of delay in payment, legal interest shall be charged for the period from the expiry of this period until the date of payment,
It was unanimously decided on 15/12/2020 to send a copy of the decision to the Ministry of Justice.
