REPUBLIC
OF TURKEY
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CONSTITUTIONAL
COURT
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FIRST SECTION
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DECISION
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APPLICATION OF
ADNAN OKTAR (2)
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(Application Number: 2013/514)
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Date of Decision: 2/10/2013
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FIRST SECTION
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DECISION
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President
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:
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Serruh KALELİ
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Members
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:
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Zehra Ayla PERKTAŞ
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Hicabi DURSUN
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Erdal TERCAN
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Zühtü ARSLAN
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Rapporteur
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:
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Serhat ALTINKÖK
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Applicant
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:
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Adnan OKTAR
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Counsel
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:
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Att. Ceyhun GÖKDOĞAN
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I. SUBJECT OF APPLICATION
1. The
applicant has alleged that the fact that upon the complaint he has lodged to
the Office of the Chief Public Prosecutor with the claim that an offense of
libel aimed at his person was committed via the website named as "www.facebook.com", a decision
to the effect that there were "no
grounds for prosecution" was given violates the Preamble and
articles 10, 17 and 36 of the Constitution.
II. APPLICATION PROCESS
2. The application was lodged on 4/1/2013
via the 4th Assize Court of Istanbul. As a result of the preliminary
examination of the petition and annexes thereof as conducted in terms of
administrative aspects, it was found out that there was no deficiency that
would prevent referral thereof to the Commission.
3. It was decided on 11/6/2013 by the
Second Commission of the First Section that the admissibility examination be
carried out by the Section, that the file be sent to the Section as per clause
(3) of article 33 of the Internal Regulation of the Constitutional Court.
III. FACTS AND CASES
A. Facts
4. The relevant facts contained within
the application are summarized as follows:
5. The applicant has filed a criminal complaint
to the Office of the Chief Public Prosecutor of Kadıköyon the date of 14/9/2012
with the claims that the person he purports to be named "A. U." swore
at him via the website "www.facebook.com",
that this person has 49 followers in the mentioned website and these persons
are aware of the insult that was aimed at him, and this constitutes an explicit
assault on his personal rights, his honor and his dignity.
6. With its decision dated 20/9/2012
and numbered decision D.2012/14900, the Office of the Chief Public Prosecutor
of Kadıköy has ruled that there were no grounds for prosecution with the
justification "no proof was obtained as
regards the fact that the suspect made his insult by targeting the complainant
or referring specifically to the complainant".
7. The applicant objected to the
decision of the Office of the Chief Public Prosecutor of Kadıköy regarding no
grounds for prosecution, the objection was rejected with the decision dated
5/11/2012 and numbered Miscellaneous Action 2012/1897 of the 2nd Assize Court
of Üsküdar.
8. The decision of dismissal of the
2nd Assize Court of Üsküdar was notified to the applicant on 5/12/2012.
B. Relevant Law
9. Paragraph (1) of the article 171 of
the Code of Criminal Procedure dated 4/12/2004 and numbered 5271 is as follows:
“The Public prosecutor shall decide that there are no
grounds for prosecution in the event that evidence to constitute sufficient
suspicion for filing a public action has not been gathered at the end of the
investigation stage or that there are no means of prosecution. Said decision shall be notified to the person damaged by the crime and
the suspect whose statement is taken previously or who is interrogated
previously. The right, period and authority of objection shall be shown in the
decision.
10. Paragraph (3) of article 173 of the
Code of Criminal Procedure numbered 5271 is as follows:
"If the court considers the extension of investigation necessary
to make its decision, it may, by way of clearly stating said matter, appoint
the criminal judge of peace of that locality; if sufficient grounds for filing
a public action are not present, it shall deny the motion with justification;
it shall convict the opposing party to the expenses and send the file to the
Public prosecutor. The Public prosecutor shall notify the opposing party and
the suspect of the decision."
IV. EXAMINATION AND JUSTIFICATION
11. The
individual application of the applicant dated 4/1/2013 and numbered 2013/514
was examined during the session held by the court on 2/10/2013 and the
following were ordered and adjudged:
A. Claims of the Applicant
12. The
applicant has asserted that the Preamble and articles 10, 17 and 36 of the
Constitution were violated by claiming that an effective investigation was not
conducted by the Office of the Chief Public Prosecutor upon the complaint he
has lodged with the claim that an offense of libel was committed against his
person via the website
"www.facebook.com"; that a decision was given to the effect that no grounds
for prosecution were present; that 49 persons are aware of the insult that was
aimed at him, and that this constitutes an explicit assault on his personal
rights, his honor and his dignity.
B. Evaluation
1.
In Terms of Article 36 of the Constitution
13. The applicant has alleged that the
fact that as a result of the investigation launched upon the complaint he has
lodged a decision to the effect that there were no grounds for prosecution was
given, violates the freedom to claim rights (right to a fair trial) regulated
in article 36 of the Constitution.
14. Paragraph three of article 148 of
the Constitution is as follows:
“Everyone can apply to the Constitutional Court based on the claim that
one of the fundamental rights and freedoms within the scope of the European
Convention on Human Rights which are guaranteed by the Constitution has been
violated by public force. …”
15. Paragraph (1) of article 45 of the
Code on the Establishment and Trial Procedures of the Constitutional Court
dated 30/3/2011 and numbered 6216 with the side heading of “Right to individual application” is as
follows:
"Everyone can apply to the Constitutional Court based on the claim
that one of the fundamental rights and freedoms within the scope of the
European Convention on Human Rights and the additional protocols thereto, to
which Turkey is a party, which are guaranteed by the Constitution has been
violated by public force."
16. Paragraph (1) of article 46 of the
Law numbered 6216 with the side heading ''Those
who have the right of individual application" is as follows:
"The individual application may only be lodged by those a current
and personal right of whom is directly affected due to the act, action or
negligence that is claimed to result in the violation."
17. According to the provisions of the
Constitution and Code that are cited, in order for the merits of an individual
application that is lodged at the Constitutional Court to be examined, the
right, which is claimed to have been intervened in by public force, must fall
within the scope of the European Convention on Human Rights ("ECHR")
and the additional protocols to which Turkey is a party, in addition to it
being guaranteed in the Constitution. In other words, it is not possible to
decide on the admissibility of an application which contains a claim of
violation of a right that is outside the common field of protection of the
Constitution and the Convention (App. No: 2012/1049, 26/3/2013, § 18).
18. Paragraph one of article 36 of the
Constitution with the side heading "Freedom
to claim rights" is as follows:
"Everyone has the right to make claims and defend themselves
either as plaintiff or defendant and the right to a fair trial before judicial
bodies through the use of legitimate ways and means."
19. Article 6 of the ECHR with the side
heading of ''Right to a fair trial''
is as follows:
“1. In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established
by law. …”
20. In paragraph one of article 36 of
the Constitution, it is stated that everyone has the right to make claims and
defend themselves either as plaintiff or defendant and the right to a fair trial
before judicial bodies through the use of legitimate ways and means. Since the
scope of the right to a fair trial is not regulated within the Constitution,
the scope and content of this right needs to be determined within the framework
of article 6 of the Convention with the side heading “Right to a fair trial” (App. No: 2012/13,
2/7/2013, § 38).
21. It is stipulated in article 6 of
the Convention which regulates the right to a fair trial that rights and
principles in relation to a fair trial are valid during the conclusion of the
merits of "disputes related to civil
rights and obligations" and a "basis of incrimination" and the scope of the right is
limited to these issues. From this expression, it is understood that, in order
to lodge an individual application on the ground that the freedom to claim
rights has been violated, it is necessary that the applicant be a party to a
dispute in relation to his/her civil rights and obligations or that a decision
has been issued on a basis of incrimination towards the applicant (App. No:
2012/917, 16/4/2013, § 21).
22. According to the case laws of the
European Court of Human Rights ("ECtHR"), persons possessing the
titles of victim, damaged by crime, complainant or party who demand third
persons be charged or sentenced in a criminal case are excluded from the field
of protection of article 6 of the Convention. The exceptions to this rule are
circumstances where a system that allows for a civil right demand in the
criminal case is adopted or where the decision adjudged as a result of the
criminal case is effective or binding with regard to the civil case (Perez v. France, 47287/99, 12/2/2004, §
70).
23. With the coming into force of the
Code of Criminal Procedure dated 4/12/2004 and numbered 5271, the possibility of
making a claim of personal right in the criminal procedure was abolished.
Therefore, the applicant has no possibility to propound his civil rights in the
process of criminal procedure. Moreover, in the material incident, the effects
of the decision on no grounds for prosecution are limited to the process of
criminal procedure and have no binding effect in terms of civil courts.
24. The applicant has filed a criminal
complaint with the aim to ensure the indictment of a third person whom he
considers to have committed a crime, and his request is limited to the
penalization of the third person. In case the applicant thinks that an
intervention to his civil rights exists due to the act of the third person and
requests that his damage in relation thereto be indemnified, he has the
opportunity to file a case before civil courts.
25. As a result, the subject of the
claim of violation of the applicant which is based on article 36 of the
Constitution falls out of the field of protection of the fundamental rights and
freedoms which are guaranteed by the Constitution and fall within the scope of
the ECHR.
26. Due to the reasons explained, it
must be decided that the application is inadmissible by reason of "lack of
venue in terms of subject", without it being examined in terms of other
conditions of admissibility.
2.
In Terms of Article 17 of the Constitution
27. The applicant asserted that the
decision of no grounds for prosecution ruled on by the Office of the Chief
Public Prosecutor in relation to the insults aimed at him violates the right to
protection of the material and spiritual existence guaranteed in article 17 of
the Constitution.
28. Article 17 of the Constitution is
as follows:
“Everyone has the right to life and the right to protect and improve
their material and spiritual existence..."
29. The purpose of the aforementioned
article is, in essence, the prevention of arbitrary interventions which can be
made by the State against the material and spiritual existence of individuals.
Furthermore, the state also has a positive liability in the form of protecting
and respecting the material and spiritual existence of individuals in an
effective way against physical and sexual attacks towards bodily and spiritual
integrity, medical interventions and the attacks which affect honor and
reputation.
30. The honor and reputation of an
individual is included within the scope of "spiritual existence" which is stipulated in article 17
of the Constitution. The state is obliged not to intervene in honor and
reputation which are a part of the spiritual existence of an individual and to
prevent the attacks of third parties. The intervention of third parties in
honor and reputation can also be made through visual and audio publications as
well as many possibilities. Even if a person is criticized within the framework
of a public debate through visual and audio publication, the honor and
reputation of that person should be considered as a part of his/her spiritual
integrity (For a decision of the ECtHR in the same vein, see: Pfeifer v. Austria, 12556/03, 15/11/2007,
§ 35).
31. Within the framework of its
positive liabilities in relation to the protection of material and spiritual
existence of individuals, the state needs to strike a balance between the right
to protection of honor and reputation and the right of the other party to
exercise the freedom of expression which is enshrined in the Constitution (For
a decision of the ECtHR in the same vein, see: Von
Hannover v. Almanya (no.2) [BD], 40660/08 and 60641/08, 7/2/2012, §
99).
32. The positive liability of the State
within the framework of establishing effective mechanisms against the
interventions of third parties on the material and spiritual existence of
individuals shall not necessarily entail the performance of a criminal investigation
and prosecution. It is also possible to protect an individual against the
unjust interventions of third parties through civil procedure. As a matter of
fact, both criminal and legal protection have been envisaged in our country for
the interventions which are made by third parties in honor and reputation.
Insult is considered as a crime in terms of criminal law, as an unjust act in
terms of private law and can be subjected to an action for compensation.
Therefore, it is also possible for the individual to ensure a relief through a
civil case with the claim that an intervention has been made by third parties
in his/her honor and reputation.
33. According to paragraph three of
Article 148 of the Constitution and paragraph (2) of Article 45 of the Code numbered
6216, in order for an individual application to be lodged before the
Constitutional Court, all administrative and judicial remedies which are
prescribed in law for the act, action or negligence that forms the basis of the
violation claim need to be exhausted. The fact that only the criminal procedure
has been resorted to with regard to the interventions which are made by third
parties in honor and reputation does not mean that the condition of exhausting
all remedies which is a requirement for lodging an individual application to
the Constitutional Court has been fulfilled.
34. Indeed, European decision making
bodies also have many decisions concerning the elimination of the libelous
discourses aimed at the honor and reputation of the individual within the
framework of the positive liabilities of the State.
35. The Parliamentary Assembly of the
Council of Europe ("the Assembly") has given numerous recommendations
to the effect that oral or written defamations be decriminalized as a crime
that requires imprisonment by drawing attention to the fact that the laws that
are in force in some of the member states of the Council of Europe ("the
Council") stipulate the penalty of imprisonment for slander and libel. In
line with this decision of the Assembly, there is a general consensus between
the member states of the Council on the subject of introducing various
regulations to decriminalize written or oral defamations or to commute the
punishments envisaged in the codes for these kinds of libels (For recommendations
of the Assembly on the subject, see: Parliamentary Assembly, Towards decriminalisation of defamation,
Resolution 1577, 04/10/2007, §§ 11, 13, 17; Parliamentary Assembly, Towards decriminalisation of defamation,
Resolution 1814, 04/10/2007, § 1; Parliamentary Assembly, Respect for media freedom, Recommendation
1897, 27/1/2010, § 11).
36. In many of its decisions, the ECtHR
as well underlines that the Contracting States should decriminalize defamation within
the shortest possible time by referring to the recommendations of the Assembly
regarding the decriminalization of defamation (Šabanovıć
v. Serbia and Montonegro, 5995/06, 31/5/2011, § 43; Niskasaari v. Finland, 37520/07, 6/7/2010,
§ 77).
37. In the material incident, the
applicant has filed a criminal complaint before the Office of the Chief Public
Prosecutor with the claim that an offense of libel aimed at his person was
committed through the website "www.facebook.com"
and that this libel constitutes an explicit assault on his personal rights, his
honor and his dignity. The prosecution, regarding the demand of the applicant,
has ruled that there were no grounds for prosecution with the justification
that no evidence could be gathered as regards the fact that the suspect made
his insult by aiming at the complainant and referring to the complainant
personally.
38. In order for an individual
application to be lodged to the Constitutional Court, all administrative and
judicial remedies envisaged for the act or action that is claimed to have
caused a violation need to be exhausted. As the individual application is a
remedy to claim rights with a secondary quality, what is essential is that
rights and freedoms are respected by public authorities and that, in case of a
possible violation, this is redressed through ordinary administrative and/or
judicial remedies. For this reason, the remedy of individual application can
only be resorted to in cases where a violation cannot be removed although the
ordinary remedies prescribed in law have been exhausted (App. No: 2012/338,
2/7/2013, § 28).
39. However, in addition to being
accessible, the application remedies that need to be exhausted also need to
have the capacity of compensation and offer a reasonable chance of redressing
the complaints of the applicant when exhausted. Therefore, including these
remedies in the legislation is not sufficient per se, it should also be
demonstrated that they are effective in implementation or at least it should
not be proven that they are not effective (App. No: 2012/338, 2/7/2013, § 29).
40. The applicant has lodged a criminal
complaint with the sole intent of initiating a criminal prosecution due to the
insult made against his person but has not filed a civil case whatsoever. The remedy
of criminal case resorted to by the applicant regarding his claims is not the
only remedy that is accessible, possessing the ability of compensation and
giving a reasonable chance of success in removing the complaints of the
applicant. It is also possible for the applicant to propound his complaints
before courts of instance by filing a civil case with regard to the impact of
the insult on private life and to receive compensation concerning these claims.
41. Due to the reasons explained, as it
is understood that an individual application was lodged before the exhaustion
of the remedy of filing a civil case regarding the claims of the applicant, it
should be decided that this part of the application is inadmissible due to the
reason that "application remedies have
not been exhausted".
3.
In Terms of Article 10 of the Constitution
42. The applicant has claimed that "the principle of equality before law"
regulated in article 10 of the Constitution was violated.
43. Article 10 of the Constitution with
the side heading of ''Equality before law''
is as follows:
"Everyone is equal before law without being subject to any
discrimination based on language, race, colour, gender, political opinion,
philosophical belief, religion, sect or similar grounds.
...
The State organs and administrative authorities must act in compliance
with the principle of equality before law in all their proceedings."
44. It is not possible to evaluate the
claims of the applicant as to effect that the principle of equality regulated
in article 10 of the Constitution has been violated in an abstract manner given
the expressions in the aforementioned articles and it is absolutely necessary
to discuss them in connection with other fundamental rights and freedoms
stipulated within the scope of the Constitution and the ECHR. (App. No:
2012/1049, 26/3/2013, § 33).
45. The claim of the applicant as to
the effect that the principle of equality is violated should be handled within
the context of and in connection with the right to protection of the material
and spiritual existence of the person. Therefore, the principle of equality in
terms of the right to protection of the material and spiritual existence of the
person possesses no function of protection with an independent quality and is
among the rights with a complementary nature that secure the enjoyment and
protection of this right and the remedies (App. No: 2012/1049, 26/3/2013, §
34).
46. In order to discuss whether or not
the prohibition of discrimination is violated, with regard to the claim of
violation, it is necessary to demonstrate on which fundamental right and
freedom and on which basis the person has been subjected to discrimination. In
the material incident, the applicant expressed that he was subjected to
discrimination by mentioning that a criminal file was lodged in some similar
incidents; however, he made no statements regarding on which basis he was
discriminated. In order for a claim of discrimination to be taken seriously,
the applicant needs to put forth through reasonable evidence that there is a
difference between the treatment applied to other persons who are in a similar
situation with him/her and the treatment applied to him/her and that this
difference is based on a basis of a discriminatory reason such as race, color,
gender, religion, language and so on without any legitimate basis. In the
material incident, as well as not being able to prove that the incidents he has
mentioned and his own situation are the same, the applicant also made no
statements regarding on which basis he was subjected to discrimination.
47. For the explained reasons, as the
applicant has not brought forward any evidence to prove his claims of
violation, it must be decided that this part of the application is inadmissible
due to the fact that it is "clearly
devoid of basis" .
V. JUDGMENT
A. It was
decided on the date of 2/10/2013 UNANIMOUSLY
due to the reasons that;
1. The claims to the effect that
article 36 of the Constitution is violated "lack
venue in terms of subject",
2. Regarding the claims to the effect
that article 17 of the Constitution is violated, "remedies are not exhausted",
3. The claims to the effect that
article 10 of the Constitution is violated are "clearly
devoid of basis", the
application is INADMISSIBLE,
B. That the
trial expenses be charged on the applicant.