REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
JUDGMENT
BEKİR COŞKUN
(Application no. 2014/12151)
President
:
Zühtü ARSLAN
Vice-President
Alparslan ALTAN
Burhan ÜSTÜN
Justices
Serdar ÖZGÜLDÜR
Serruh KALELİ
Osman Alifeyyaz PAKSÜT
Recep KÖMÜRCÜ
Engin YILDIRIM
Nuri NECİPOĞLU
Hicabi DURSUN
Celal Mümtaz AKINCI
Erdal TERCAN
Muammer TOPAL
M. Emin KUZ
Hasan Tahsin GÖKCAN
Kadir ÖZKAYA
Rıdvan GÜLEÇ
Rapporteur
Yunus HEPER
Applicant
Bekir COŞKUN
Counsel
Att. Mustafa Gökhan TEKŞEN
Att. Özlem GÜNEL TEKŞEN
I. SUBJECT-MATTER OF THE APPLICATION
1. The application concerns the allegations that the penalization of the applicant, a columnist, due to a column he wrote violates the freedom of expression and the freedom of the press.
II. APPLICATION PROCESS
2. The application was directly lodged with the Constitutional Court on 23/7/2014. The deficiencies detected as a result of the preliminary administrative examination of the petitions and their annexes were made to be completed and it was determined that no deficiency preventing their submission to the Commission existed.
3. It was decided by the First Commission of the First Section on 28/11/2014 that the file is sent to the Section in order for the examination of admissibility to be conducted by the Section.
4. On 29/12/2014, the Head of the Section decided that the examination of admissibility and merits be jointly carried out.
5. The facts, which are the subject matter of the application, and a copy of the application was sent to the Ministry of Justice on 29/12/2014 in order for the Ministry to submit its opinion. The opinion letter by the Ministry of Justice of 28/1/2015 was notified to the applicant on 4/2/2015. The applicant submitted his counter-opinion to the Constitutional Court on 11/2/2015 within due time.
6. In the session of the Section held on 21/5/2015, as it was deemed to be necessary that the application be concluded by the Grand Chamber due to its nature, it was decided that it be referred to the Grand Chamber in order to be discussed as per Article 28(3) of the Internal Regulation of the Constitutional Court.
III. THE FACTS
A. The Circumstances of the Case
7. As expressed in the application form and the annexes thereof and the opinion of the Ministry, the facts are summarized as follows:
8. In the copy of national daily Cumhuriyet Newspaper of 4/7/2013, the applicant wrote the column titled “Painted Stairs” on the protests of painting stairs that started in Istanbul on 31/8/2013 and spread across the entire country. The column reads as follows:
“My stairs are painted… Red… Blue… Yellow… * Indeed you need to paint the feet… Then there will be color wherever you go… * This could be the reason for the conflict: The fight of color versus lack of color… * Dancing is pink, for instance… Raki is white… Love is red… Trees are green… Streams are blue… Yellow-dark blues, yellow-reds, black-whites… A giant poster of our lion with blue eyes and golden hair was hanging on the wall… * They still say “They have 44 percent of the votes” … So much of an apocalypse, so much turmoil, so much of a scandal, so much vileness and dishonor… So is it only 6 percent that understands what Turkey suffers from? Indeed, they are watching color televisions… Are you color blind, then? * War is black… Peace is snow-white… Republic is white and red… Secularism is a true rainbow… * They do not like colors… They decided that the MPs got angry and fought a lot since they were sitting on orange seats in the parliament… So they attack when they see red… The bull-y MPs… * Paint… Take up brushes… Pavements, roads, walls, stones, the ground, the sky… Paint wherever you want… * This is not the fanatics’ bow… This is the rainbow… White… Red… Blue… Yellow…”
9. Due to the said column, Mihrimah Belma Satır, Istanbul MP from the Justice and Development Party (AK Party), filed a criminal complaint against the applicant on 1/10/2013 and Metin Külünk, Istanbul MP from AK Party, filed a criminal complaint against the applicant on 10/10/2013, both alleging that the crimes of insult to a public officer and provoking the people to hatred and animosity or denigrating the people had been committed.
10. In relation to the same column, Selçuk Özdağ, Manisa MP from AK Party, also filed a criminal complaint on 30/10/2013 on the allegation that the crime of insult against a public officer had been committed.
11. In its investigation file numbered 2013/136853, the Chief Public Prosecutor’s Office of Istanbul lodged a criminal case by the indictment of 21/11/2013 in order for the applicant to be penalized on the allegation that he committed the crime of open insult against public officers -by virtue of their duties- working as a committee.
12. On the other hand, the Chief Public Prosecutor's Office of Istanbul decided (File No:2013/136853 of 21/11/2013) in its investigation that there were no grounds for the prosecution against the applicant since the elements of the crime of provoking the people to hatred and animosity had not been formed.
13. The criminal case lodged by the Chief Public Prosecutor’s Office of Istanbul by its indictment dated 21/11/2013 was heard at the 2nd Criminal Court of First Instance of Istanbul.
14. In its judgment of 29/4/2014, the 2nd Criminal Court of First Instance of Istanbul decided that the applicant be given an imprisonment penalty of 1 year 2 months 17 days on the ground that he committed the crime of insult against a public officer through the press by virtue of their duty and the court decided the pronouncement of the judgment on the defendant be postponed. The reasoning of the Court of First Instance is as follows:
“…
When the column, which is the subject matter of the case, is considered as a whole in terms of its subject, the Columnist does not mention at all the acts, statements, disclosure of ideas relevant to the public that are delivered by the complainants, who are politicians, on a political matter or a public matter that interests the public during their political life and their performance of a public duty such as being an MP and does not explore the ideas and attitudes of the claimants; nor does he constitute a new or counter idea against their ideas on such matters. It is a natural consequence of political life and the performance of a public duty that the MPs, who are politicians, are criticized by the press, even in a tough, harsh and offensive manner, more than anyone else in relation to a thought or an act they have displayed positively or negatively on an issue that will interest even some of the members of the society. However, in order for a person to be criticized, there must be a subject for criticism in place.
Statements made by politicians on political or public matters, practices on matters such as health, education, foreign policy, and so on that interest the public or other public practices can be covered and criticized by the Press. In his column, as the Columnist makes a statement and description about the MPs, saying “... So they attack when they see red... The bull-y MPs...” he fails to make it clear regarding which statements or which public acts of the claimants he is stating this about.
It is understood from the defendant’s defense, the complaint petition, the copy of the newspaper and the scope of the whole file that it was possible for the defendant, who made statements and comments on the colors of the seats of MPs in the Plenary Hall of the Grand National Assembly of Turkey, to state his thoughts and comments in words that are not humiliating and degrading but still using a humorous language, that the only purpose of making a statement which read “... So they attack when they see red... The bull-y MPs...” without any intellectual bond with the contents of the column and also in a manner that did not bring any public benefit was to degrade the complainants, that the boundaries of lawfulness and criticism were violated when the honor and reputation of the claimants in the public eye and the intrinsic value were attacked and that, due to the fact that a humiliating value judgment was involved, the defendant committed the crime of openly insulting public officers who work as a committee, by virtue of their duties, which was attributed to him.”
15. The objection that was lodged by the applicant against this decision was rejected through the judgment of 24/6/2014 by the 2nd Assize Court of Istanbul.
16. In relation to the same column, another investigation was started against the applicant by the Chief Public Prosecutor’s Office of Manisa. The Chief Public Prosecutor’s Office decided on 30/1/2014 that there were no grounds for prosecution. Upon an objection against the decision, the 7th Assize Court of Izmir assessed the objection and decided on its rejection by its judgment of 10/3/2014.
17. The individual application was lodged with the Constitutional Court on 23/7/2014.
B. Relevant Law
18. Article 125 of the Turkish Criminal Code No. 5237 of 26/9/2004 with the side heading “Defamation” is as follows:
“(1) A person who attributes to an individual a concrete act or phenomenon of a quality which can hurt his/her honor and reputability, ... or who attacks the honor and reputability of an individual by way of cursing shall be given an imprisonment penalty of three months to two years or a judicial fine. In order to penalize an insult in absentia against the aggrieved, the act must be committed in the presence of at least three persons.
(2) In the event that the act is committed through an audio, printed or visual message which is addressed to the aggrieved, the penalty set forth in the above clause shall be decreed.
(3) If defamation is committed:
a) Against a public officer by virtue of their duty,
b) Due to the fact that an individual expresses, changes, attempts to spread their religious, political, social, philosophical beliefs, thoughts and convictions, acts in accordance with the commands and restrictions of the religion they belong to,
c) By mention of values deemed sacred by the religion to which an individual belongs to,
the lower limit for the penalty cannot be less than one year."
(4) (Amended paragraph: 29/06/2005 - Law No. 5377/Art. 15) In the event that the insult is committed openly, the penalty shall be increased by one-sixth.
(5) (Amended paragraph: 29/06/2005 - Law No. 5377/Art. 15) In the event of insult against a public officer -by virtue of their duty- working as a committee, the crime shall be considered to have been committed against the members comprising the committee. However, in such cases, the provisions of articles on successive crimes shall be applied."
19. The relevant part of Article 231 of the Law of Criminal Procedure No. 5271 of 4/12/2004 with the side heading “Pronouncement of the judgment and postponement of the pronouncement of the judgment" is as follows:
(5) (Additional: 6/12/2006 - 5560/Art. 23) If the penalty adjudged at the end of the trial heard due to the crime the defendant is charged with is an imprisonment penalty of two years or less or a judicial fine, the court may decide to postpone the pronouncement of the judgment. Provisions pertaining to conciliation shall be reserved. Postponement of the pronouncement of the judgment shall mean that the established judgment causes no legal consequence on the defendant.
(6) (Additional: 6/12/2006 - 5560/Art. 23) In order to decide on the postponement of the pronouncement of the judgment;
a) The defendant must not be previously convicted for an intentional crime,
b) The court must reach a conviction that, considering the characteristics of the defendant and their attitudes and behaviors during the trial, they will not commit a crime again,
c) Damages encountered by the aggrieved or the public as a result of the commission of the crime must be fully compensated by reinstatement or restitution of the conditions prior to the offense or by indemnification.
(Additional sentence: 22/7/2010 - 6008/Art. 7) In the event that the defendant does not accept it, the postponement of the pronouncement of the judgment shall not be decided on.
…
(8) (Additional: 6/12/2006 - 5560/Art. 23) In the event that the postponement of the pronouncement of the judgment is decided on, the defendant shall be subject to a probation period of five years. (Additional sentence: 18/6/2014 - 6545/Art. 72) Within the probation period, the postponement of the pronouncement of the judgment due to an intentional crime cannot be decided on once again in relation to the same person. “
IV. EXAMINATION AND GROUNDS
20. The individual application of the applicant (App. No: 2014/12151 of 23/7/2014) was examined during the session held by the court on 4/6/2015 and the following was ordered and adjudged:
A. The Applicant’s Allegations
21. The applicant
i. reminded in relation to the same matter and within the scope of criminal prosecution against himself that the 2nd Criminal Court of First Instance of Istanbul sentenced him although the Chief Public Prosecutor’s Office of Manisa decided there were no grounds for prosecution (NGfP) and this judgment was finalized as a result of the assessment of objection. The applicant alleged that the principle of double jeopardy had been breached and the right to a fair trial guaranteed in Article 36 of the Constitution had been violated.
ii. He stated that the opinions of the defense had not been included within the reasoning of the judgment of the Court of First Instance and the basis of the judgment had not been indicated. Thus, he alleged that the right to a judgment with reasoning, an element of the right to a fair trial guaranteed by Article 36 of the Constitution had been violated.
iii. He stated that, in the newspaper column that is the subject of the application, he engaged in a criticism on current and political matters without targeting any specific member of the parliament and that politicians needed to be more flexible and tolerant in terms of their duties and activities. Thus, he alleged that the freedom of expression guaranteed in Articles 26 and 28 of the Constitution and the freedom of the press, an integral part thereof, had been violated.
The applicant requested that the violation is determined and non-pecuniary damages of TRY 50,000.00 be adjudged.
B. The Constitutional Court’s Assessment
1. Admissibility
22. The Constitutional Court is not bound by the legal qualification of the incidents made by the applicant but it appraises the legal definition of the facts itself.
23. Although the applicant alleged that it constituted a violation of the right to a fair trial that is guaranteed in Article 36 of the Constitution that he was convicted by the 2nd Criminal Court of First Instance of Istanbul and the pronouncement of the judgment was postponed even though it was decided by several Public Prosecutor’s Offices that there were no grounds for prosecution for the same column, this complaint aims at punishing him for the column he wrote and thus it is deemed appropriate that the said complaint is assessed within the context of Articles 26 and 28 of the Constitution.
24. In the event that there are interventions in the freedom of expression and the freedom of the press in complaints filed within the context of Articles 26 and 28 of the Constitution, it is required to assess in terms of the requirements of the democratic social order whether the judgments of the courts of the first instance involve "grounds that are sufficient and relevant to the matter” and whether “there is a reasonable balance between the purpose and means of restriction”. For this reason, the complaints of the applicant that the ground for the judgment of the Court of First Instance was not sufficient and that it was not indicated on what basis the judgment of conviction relied on needs to be assessed as a whole within the scope of the freedom of expression and the freedom of the press.
25. The applicant's complaints that the punishment restricting the freedom that he was given due to a newspaper column he wrote violates the freedom of expression and the freedom of the press are not manifestly ill-founded. Moreover, it should be decided that the application is admissible as there is no other reason for inadmissibility.
2. Merits
26. The applicant alleged that the fact that he was given a sentence restricting freedom due to a newspaper column he wrote violates the freedom of expression protected in Article 26 of the Constitution and the freedom of the press protected in Article 28 of the Constitution. Against the allegations of the applicant, the Ministry stated that it was necessary to examine the complaints of the applicant within the framework of the freedom of expression and dissemination of thought stipulated in Article 26 of the Constitution. The applicant reiterated his statements in the application petition against the opinion of the Ministry on the merits of the application.
27. Article 13 of the Constitution with the side heading ''Restriction of fundamental rights and freedoms'' is as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”
28. Article 26 of the Constitution with the side heading ''Freedom of expression and dissemination of thought'' is as follows:
“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.
The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.
The formalities, conditions, and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law."
29. The relevant part of Article 28 of the Constitution with the side heading ‘’Freedom of the press’’ is as follows:
“The press is free, and shall not be censored...
The State shall take the necessary measures to ensure freedom of the press and information.
In the restriction of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply.
…”
30. The means which can be resorted to in the exercise of the freedom of expression are listed in Article 26 of the Constitution as “by speech, in writing or in pictures or through other media’’ and with the expression ''other media'', it is demonstrated that all kinds of means of expression are under constitutional protection. (Emin Aydın [GK], B. No: 2013/2602, 23/1/2014, § 43). The freedom of expression directly impacts a significant part of the other rights and freedoms enshrined in the Constitution. Indeed, the press, which is the main channel of dissemination of thought through the press and publications in the form of newspapers, journals or books, is one of the ways of exercising the freedom of expression (Abdullah Öcalan [GK], B. No: 2013/409, 25/6/2014, § 73).
31. More detailed regulations regarding the freedom of the press are contained within the Constitution. The main regulation in the field of the freedom of the press is found in Article 28 of the Constitution. In addition to Article 28 of the Constitution, Article 29 refers to the right to publish periodicals and non-periodicals and Article 30 refers to the protection of press equipment. The right to use mass communication tools, other than the press, owned by public entities is regulated in Article 31 of the Constitution.
32. It is stated in paragraph one of Article 28 that the press is free and cannot be censored and it is stated in paragraph three that the state has positive liabilities in terms of the freedom of the press and of information. It is stipulated in Article 28(4) of the Constitution that the provisions of Articles 26 and 27 be applied in the restriction of the freedom of the press. Although it is necessary to assess individual applications on the freedom of the press, which protects a special type of expression of thoughts and opinions, within the scope of Article 28 of the Constitution, which specifically regulates this matter, other articles on the matter should also be considered within the scope of this assessment as per the principle of integrity of the Constitution. In this framework, Article 28 and Article 26 of the Constitution, which is related to the freedom of expression, need to be taken into consideration together in terms of the application at hand. Due to the close relation between the freedom of expression and the freedom of the press, the concept of “the freedom of expression”, which also covers the freedom of the press, is taken as basis in the application at hand during the assessment of the allegations of intervention to dissemination of thought through the press and publications.
33. As emphasized in Article 26(1) of the Constitution, the freedom of expression involves everyone's right to express and disseminate their thoughts and opinions by speech, in writing or in pictures or through other media and, in connection, the liberties of receiving or imparting information or ideas. In this framework, the freedom of expression refers to individuals’ ability to have free access to the news and information and to other people’s opinions, not be condemned due to their thoughts and opinions and to freely express, explain, defend, transmit to others and disseminate these through various means either alone or together with others.
34. Also covering the freedom of the press, the freedom of expression includes the rights to express and interpret thoughts and opinions through means such as newspapers, magazines, and books and to publish and disseminate information, news and criticism. The freedom of expression ensures that the individual and the society are informed by enabling the transmission and circulation of thoughts. The expression of thoughts, including those which oppose the majority, via all sorts of means, garnering supporters to the thoughts which have been explained, fulfilling and efforts aimed at convincing others to fulfill the thoughts are among the requirements of the pluralistic democratic order. Therefore, the freedom of expression and dissemination of thought and the freedom of the press are of vital importance for the functioning of democracy (see Abdullah Öcalan, § 74).
35. In this context, establishing social and political pluralism is dependent on the expression of all kinds of thoughts in a peaceful fashion and freely. In the same manner, an individual can realize his/her unique personality in an environment where he/she can freely express his/her thoughts and engage in discussion. The freedom of expression is a value that we need in defining, understanding and perceiving ourselves and others and, within this framework, in determining our relations with others (Emin Aydın, § 41).
36. Articles 26(1) and 28(1) of the Constitution do not impose any restriction on the freedom of expression in terms of content. In other words, applying to both real and legal persons, the freedom of expression includes in its scope all kinds of expressions such as the expression of political, artistic, academic or commercial thoughts and opinions. Categorizing a thought that is expressed and disseminated as “valuable - valueless” or “useful - useless” for individuals and the society in terms of its contents includes subjective elements. Attempting to determine the sphere of the freedom of expression based on such categorizations may give rise to the consequence that this freedom is restricted arbitrarily. The freedom of expression also includes the freedom to express and disseminate thoughts which are considered as “valueless” or “useless” for others.
37. In addition to that, the freedom of expression is subject to the restriction regime for the fundamental rights and freedoms contained within the Constitution. Restriction reasons are provided under Article 26(2), which relates to the freedom of expression. In the restriction of the freedom of the press, the provisions of Articles 26 and 27 of the Constitution shall apply as a rule as per Article 28(4). In addition, in the restriction of the freedom of the press, some exclusive reasons for restriction are provided in Article 28(5), (7) and (9). In applications that are similar to the present application, the reasons for restriction provided in Article 26(2) of the Constitution should be taken into consideration.
38. However, it is also clear that there must be a limit to the restrictions to the freedom of expression and the freedom of the press. The criteria under Article 13 of the Constitution must be taken into consideration as regards the restriction of fundamental rights and freedoms. For this reason, the review concerning the restrictions imposed on the freedom of expression should be conducted within the framework of the criteria provided in Article 13 of the Constitution and within the scope of Articles 26 and 28 of the Constitution.
39. The application was filed due to the fact that the applicant had been sentenced to a punishment restricting freedom for 1 year and 2 months and 17 days on the ground that the applicant insulted the members of the Grand National Assembly of Turkey in a column. The Court of First Instance also adjudged to postpone the pronouncement of the judgment. The first issue to be resolved in the present case is to determine whether the punishment restricting the freedom that the applicant was given constitutes an intervention in the freedom of expression. In the subsequent stages, it needs to be determined whether the purpose indicated as basis to the intervention, the existence of which was accepted, was legitimate, whether the right in question was restricted in a way which would damage its essence, whether the restriction was necessary for a democratic society and whether the means used were proportionate.
i. As regards the Existence of the Intervention
40. It was considered that the words included in a column that the applicant wrote in a newspaper constituted the crime of defamation of members of the parliament and it was adjudged that the applicant is sentenced to a punishment restricting freedom for 1 year and 2 months and 17 days and that the pronouncement of the sentence is postponed. Therefore, an intervention was made in the freedom of expression of the applicant by the court judgment in question.
ii. As regards whether the Intervention Constitutes a Violation
41. The aforementioned intervention will constitute a violation of Articles 26 and 28 of the Constitution as long as they do not rest on one or more of the valid reasons stated in Article 26(2) of the Constitution and do not fulfill the conditions stated in Article 13 of the Constitution. Due to this reason, it needs to be determined whether the restriction is in line with the conditions of bearing no prejudice to the essence, being based on the grounds indicated under the relevant article of the Constitution, being prescribed by laws, not being contrary to the letter and spirit of the Constitution, to the requirements of the democratic social order and of the secular Republic and to the principle of proportionality as prescribed under Article 13 of the Constitution.
1. Restriction by Law
42. The applicant did not make any allegations that there was a contrariety to the provision "The formalities, conditions, and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law" in Article 26 5) of the Constitution and the requirement of the rule that fundamental rights and freedoms may only be “restricted by law” as stated in Article 13 of the Constitution. As a result of the assessments that were made, it was concluded that Article 125 of the Law No. 5237 fulfilled the criterion of “restriction by law”.
2. Legitimate purpose
43. The applicant was sentenced to punishment restricting freedom on the allegation that he defamed the members of parliament. It is concluded that the said judgment on the punishment restricting freedom is a part of the measures to protect “the reputation or rights of others” and had a legitimate aim.
3. Necessity and Proportionality in the Democratic Social Order
44. In the judgment with regard to the applicant being sentenced due to the words he wrote in a newspaper column, it should be considered whether a reasonable balance was struck between the freedom of expression of the applicant and the protection of the reputation or rights of others.
45. The personal honor and reputation of an individual are included within the scope of the "spiritual existence" of the individual which is stipulated in Article 17 of the Constitution. The state is obliged not to arbitrarily 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 a number of other ways. Even if a person is criticized within the framework of a public debate through visual and audio publication or broadcast, the honor and reputation of that person should be considered as a part of his/her spiritual integrity (Nilgün Halloran, B. No: 2012/1184, 16/7/2014, § 41; Adnan Oktar (3), B. No: 2013/1123, 2/10/2013, § 33).
46. The state has positive and negative liabilities in the field of the freedom of expression and, specifically, in the field of the freedom of the press. Within the scope of negative liability, public authorities should not prohibit and impose sanctions on the expression and dissemination of thought as long as this is not obligatory; and they should take the required measures for actual and efficient protection of the freedom of expression within the scope of positive liability (Nilgün Halloran, § 43; for an opinion of the ECtHR in the same vein, see. Özgür Gündem v. Turkey, App. No: 23144/93, 16/3/2000, § 43).
47. Within the framework of its positive liabilities in relation to the protection of the material and spiritual existence of individuals, the state needs to strike a fair balance between the right to protection of honor and reputation and the right of the other party to enjoy the freedom of expression which is guaranteed in the Constitution. In applications such as the one in the present case, the outcome of the application does not change, in principle, according to whether the application is lodged by the owner of the disputed article and words relying on Article 26 of the Constitution or by the person who was the subject of this article or words relying on Article 17(1) of the Constitution. Otherwise, controversial outcomes may arise in similar cases in terms of balancing the rights protected in the said articles of the Constitution. Judicial bodies need to establish a balance between the rights regulated in these two articles which are in compliance with the criteria provided in Article 13 of the Constitution and in the case law of the Constitutional Court regarding the implementation of this article.
48. While establishing this balance, the essence of the right should not be prejudiced within the scope of Article 13 of the Constitution and a proportion should be observed between the requirements of a democratic social order and the purpose and means of restriction (Nilgün Halloran, § 43).
49. Democracies are regimes in which the fundamental rights and freedoms are granted and guaranteed in the broadest manner. In a democratic state of law, restrictions that render fundamental rights and freedoms completely unexercisable by bearing prejudice to their essence cannot be allowed. It is also acknowledged in Article 13 of the Constitution regulating the restriction of fundamental rights and freedoms, that fundamental rights and freedoms can only be restricted for the reasons set forth in the Constitution and by law, without bearing prejudice to their essence. The essence to which no prejudice can be born from a constitutional standpoint varies in terms of each fundamental right and freedom. Nevertheless, in order to acknowledge that a restriction introduced by law does not bear prejudice to the essence of the right, it should not render the exercise of fundamental rights significantly difficult, prevent them from fulfilling their objective and have a feature that would remove their effect.
50. With regard to restrictions that are introduced without bearing prejudice to the essence of fundamental rights and freedoms, it has been expressed that these restrictions cannot be in violation of the requirements of the democratic social order and the principle of proportionality. In other words, as restrictions that bear prejudice to the essence would be in violation of the principles of “requirements of a democratic social order” and “proportionality” a fortiori, it was not deemed necessary that a separate assessment be conducted with a view to the principles of “requirements of a democratic social order” and “proportionality” with regard to restrictions that bear prejudice to the essence of fundamental rights and freedoms that protect the Constitution.
51. The concept of “requirements of a democratic social order” that is prescribed to be observed with regard to interventions that do not violate the prohibition of bearing prejudice to essence requires that the restrictions on the freedom of expression are primarily in the form of a compulsory or exceptional measure and that they emerge as the last remedy to be resorted to or the last measure to be taken. Being one of the “requirements of a democratic social order” refers to a restriction being geared towards the fulfillment of a pressing social need in a democratic society. According to this, if the restrictive measure does not meet a social need or is not in the form of the last remedy to resort to, it cannot be considered as a measure which is in conformity with the requirements of the democratic social order (For a judgment of the ECtHR on this matter, see Handyside v. United Kingdom, App. No: 5493/72, 7/12/1976, § 48).
52. According to the outcome therefrom, there is no doubt that the freedom of expression, which constitutes one of the main pillars of a democratic society, applies not only to expressions which are accepted to be in favor or considered to be harmless or not worthy of attention, but also to expressions which are critical of a section of the State or the society, which are striking to them or which disturb them. That is because such expressions are the requirements of pluralism, tolerance, and open-mindedness, which prevail in a democratic social order (see Handyside v. United Kingdom, § 49).
53. Another guarantee which will come into play in all kinds of restrictions to be imposed upon rights and freedoms is the "principle of proportionality’’ expressed under Article 13 of the Constitution. This principle is a guarantee which needs to be taken into consideration with priority in applications regarding the restriction of fundamental rights and freedoms. Although the principles of requirements of a democratic social order and of proportionality are regulated as two separate criteria under Article 13 of the Constitution, there is a close relationship between these two criteria. It needs to be examined whether any restriction on fundamental rights and freedoms is necessary for the democratic social order, or in other words, whether it is a proportionate restriction that allows for the least possible intervention in fundamental rights while fulfilling the intended aim of public benefit (CC, E. 2007/4, K. 2007/81, K.T.18/10/2007).
54. According to the judgments of the Constitutional Court, proportionality reflects the relationship between the objectives and the means of restricting fundamental rights and freedoms. Proportionality review is the review of the means selected based on the sought objective in order to reach this objective. For this reason, in interventions imposed in the field of the freedom of expression, whether the intervention selected in order to achieve the sought objective is suitable, necessary and proportionate needs to be assessed (Abdullah Öcalan, § 97).
55. Due to their indicated qualities, the concepts of “essence of fundamental rights and freedoms”, “requirements of a democratic social order” and “the principle of proportionality”, which are contained within Article 13 of the Constitution and are closely linked, are parts of a whole and constitute the fundamental criteria that need to be observed within the regime of freedoms in a “democratic state of law”.
56. Therefore, it will be necessary to see whether or not a judicial or administrative intervention in the freedom of expression meets the pressure of a social need. The main axis for the assessments to be carried out with regard to the facts in the application will be whether the courts of instance, which caused the intervention, convincingly put forward that the grounds they relied on in their judgments are in line with the principles of the requirements of a democratic social order'' and ''proportionality'' with respect to restriction the freedom of expression (Abdullah Öcalan, § 97).
57. In the light of the assessments above, courts need to indicate the presence of a benefit which outweighs the benefit arising from the exercise of the freedom of expression and which needs to be protected, while they are deciding on damages or a sentence regarding the expression and dissemination of thoughts (Mustafa Ali Balbay, App. No: 2012/1272, 4/12/2013, § 114). As a result, while assessing whether the intervention in the applicant’s freedom of speech constitutes a violation of Articles 26 and 28 of the Constitution, an abstract evaluation should not be conducted but it should be considered whether the type of statements used by the applicant, their capacity to contribute to public discussions, the quality and scope of restrictions on the statements, the person who made the statements, the person to whom the statements were addressed and the weight of the rights that the public and other persons have against the statements used are duly assessed.
58. When the press is considered with its public oversight function, which is the obligation to convey information and opinions in a democracy; in order to say that the penal sanctions imposed on the applicant due to the words he uttered as a journalist in his criticism against politicians or government policies are proportionate, the reasons for intervening in the freedom of expression need to be convincing, or in other words, relevant and sufficient.
59. The applicant is a renowned columnist in Turkey. Before the date when the column that is the subject of the application was written, social incidents known as “Gezi Incidents” had occurred in June 2013 and acts of painting stairs had then started in various parts of Turkey allegedly to raise environmental awareness. On the dates when the incidents took place, some municipalities opposed to the act of painting stairs also named as "rainbow protest", and repainted the stairs, which were previously painted in rainbow colors, gray. The column that is the subject of the application was written as part of discussions ongoing in the press and media organs and in the sphere of politics during the days when the incidents occurred.
60. In the said column, acts of painting stairs were supported through several humorous and indirect statements and those who opposed these acts were criticized. The applicant thinks that the struggle in Turkey is one of those who love and those who do not love colors. The applicant interrelates opposing to the painting of stairs to the aggressiveness and fights of MPs in the Parliament and refers to the press claims that some colors make members of the parliament aggressive. Furthermore, the applicant criticizes the fact that “the votes of the ruling party is 44 percent” despite “all that has happened” and accuses those who voted for the ruling party of being “color blind”.
61. The 2nd Criminal Court of First Instance of Istanbul held that the applicant did not criticize a substantial action or thought of members of the parliament, that no positive or negative assessment on a matter regarding social issues was included in the column, and that critical statements issued without a subject for criticism were only issued for the purpose of humiliation. The Court of First Instance held that the press may criticize statements of politicians on matters concerning the public and the practices on issues concerning the society such as healthcare, education and foreign policy. On the other hand, the Court held that the applicant did not criticize a substantial statement or action of members of the parliament when he generally wrote “So they attack when they see red”, “The Bull-y MPs” about the members of the parliament. These words aim to humiliate and degrade. It is possible to comment on the colors of seats at the GNAT Plenary Hall in a humorous language and by using words that are not degrading and humiliating. The Court held that the honor and reputation of the members of the parliament were harmed due to the column the applicant wrote and the criticism exceeded the limits of lawfulness.
62. In individual applications, it cannot be sufficient to handle only the judgments issued by the courts of instance. First of all, it should be considered that the words written by the applicant were not written concretely in criticism of a specific member of the parliament. Secondly, the statements “So they attack when they see red”, “The Bull-y MPs”, which are the subject of trial proceedings, should be evaluated as a whole together with the column in which they were used and within the entirety of the incident without being separated from the context they were written in (Nilgün Halloran, § 52).
63. The applicant defended the act of painting stairs and used harsh statements against the officials who criticized such acts. The Court of First Instance decided that the words of the applicant meant an insult to all members of the GNAT. On the other hand, it is not evident that the applicant wrote those words directly against any specific member of the parliament. The applicant expresses an abstract criticism against all politicians including the members of the parliament. The acknowledgment of the Court of First Instance that the target for the harsh words the applicant used was the complainant member of the parliament was possible only when it attributed meanings to the words the applicant used other than the meaning the columnist intended. On the other hand, even though it is accepted that the applicant targeted the members of the parliament individually in his words as the Court of First Instance acknowledged, the statements of the applicant need to be evaluated within the entirety of the column and without being separated from the context they were written in.
64. To a large extent, the freedom of expression aims to guarantee the freedom of criticism. Therefore, the use of harsh statements during the expression and dissemination of thoughts should be considered natural. On the other hand, when it is considered that the freedom of political debate is “a basic principle of all democratic systems” (see Lingens v. Austria, App. No: 9815/82, 8/7/1986, § 41-42), it is necessary to attach a distinct importance to the freedom of political speech in comparison to other types of expression. In addition, the ECtHR frequently emphasizes in its judgments that defending a political debate is a core element in a democratic society. The ECtHR underlines that political speech should not be restricted in the absence of compelling reasons (for a judgment in the same vein, see Feldek v. Slovakia, App. No: 29032/95, 12/7/2001, § 83).
65. Through the words that led to his conviction, the applicant criticized the reaction of some municipality officials and some politicians against the activity of painting urban stairs, which was started by persons in order to draw attention to environmental problems, following the incidents that came to be known as “Gezi Incidents” and occupied the agenda in Turkey for a long time. Furthermore, the applicant also makes reference to certain news that previously appeared on the press, suggesting that the colors of the Plenary Hall of the GNAT and specifically the red color of the seats disrupted the moods of the members of the parliament. Using the expressions “So they attack when they see red” and “The Bull-y MPs”, the applicant uses a metaphor of bulls attacking matadors that carry red cloaks in their hands and criticizes in a humorous manner that a colorful environment is not tolerated by politicians.
66. As the ECtHR indicates in its established case law, governments must be tolerant against even the fiercest criticism directed to them due to the public power they exercise. A healthy democracy requires that the Government be subject to the scrutiny not only of the legislative and judicial authorities but also of other players from the political sphere such as non-governmental organizations, the press or political parties (for a judgment in the same vein, see Castells v. Spain, App. No: 11798/85, 23/4/1992, § 46).
67. In a similar manner, the acceptable limits of criticism against politicians are wider than the limits of criticism against other persons. Unlike other persons, a politician opens all their speeches and acts to the scrutiny of the public and other politicians by choice and is therefore obliged to display a broader tolerance (for a similar approach, see Lingens v. Austria, § 42).
68. Nevertheless, the fact that politicians must be more tolerant does not mean that their “reputation and rights” specified in Article 26(1) of the Constitution will not be protected. On the contrary, Article 26(2) allows for the protection of the reputations of all individuals. However, in relation to politicians who act outside their personal titles, the requirements of the said protection need to be weighed in connection with the benefit of openly discussing political issues (for the approach of the ECtHR on the same matter, see Lingens v. Austria, § 42).
69. It is beyond doubt that the applicant’s support of an act that draws attention to environmental problems in Turkey and his criticisms of those who are against this act, from his own perspective in the column that is the subject matter of the case, is a matter that concerns public interest in general. Furthermore, the limits of criticism towards governments and politicians are wider than those towards real persons.
70. The applicant was given an imprisonment sentence of 1 year 2 months and 17 days due to the column he wrote. Although the Court of First Instance decided to postpone the pronouncement of the judgment, the applicant was given a probation measure of 5 years and there is always the risk that the penalty of the applicant, who is a columnist, may be enforced any time during this period. The concern of being sanctioned has a punctuating interrupting impact on persons and, due to this impact, there is the risk that the person may avoid expressing his thoughts or engaging in press activities in the future even if the person completes the probation period without receiving a new sentence in the end. As a result, it should be admitted that the possibility of enforcement of the penalty on the applicant in the future puts the applicant under stress and a concern of being punished.
71. Due to these reasons, it is concluded that the intervention made on the freedom of expression of the applicant was not an intervention that was necessary to protect “the reputation and rights of others” in a democratic social order.
72. It should be decided that the applicant’s freedom of expression and freedom of the press guaranteed in Articles 26(1) and 28(1) of the Constitution were violated.
3. Article 50 of the Law No. 6216
73. The applicant requested that non-pecuniary damages of TRY 20,000.00 be adjudged.
74. Article 50(2) of the Law No. 6216 with the side heading “Judgments” is as follows:
"If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation."
75. In the application, it has been concluded that Article 26(1) and Article 28(1) of the Constitution were violated. It should be decided that a copy of the judgment be sent to the 2nd Criminal Court of First Instance of Istanbul in order for the violation and the consequences thereof to be removed as per Article 50(1) and (2) of the Law No. 6216.
76. In terms of the application regarding the applicant's freedom of expression, it should be decided that non-pecuniary damages of net TRY 5,000.00 be paid to the applicant in return for the non-pecuniary damages of the applicant which cannot be redressed only with the determination of violation.
77. Since the applicant requests the collection of the counsel's fee and trial expenses, it should be decided that the total trial expense of TRY 1,698.35, which is incurred by the applicant and determined as per the documents in the file and consists of TRY 198.35 for application fee and TRY 1,500.00 for counsel's fee, be paid to the applicant.
V. JUDGMENT
In the light of the reasons explained, it is UNANIMOUSLY held on 4/6/2015;
A. That the applicant's
1. Allegations to the effect that his freedom of expression and freedom of the press were violated are ADMISSIBLE,
2. That the freedom of expression guaranteed in Article 26 (1) of the Constitution and the freedom of the press guaranteed in Article 28 (1) of the Constitution were VIOLATED,
3. That the applicant be PAID a net amount of TRY 5,000.00 of non-pecuniary DAMAGES, that other requests of the applicant regarding damaged be REJECTED,
B. That the trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel’s fee of TRY 1,500.00, which were incurred by the applicant be PAID TO THE APPLICANT,
C. That the payment be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the statutory interest be charged for the period that elapses from the date on which this period comes to an end to the date of payment.
D. That a copy of the judgment is SENT to the 2nd Criminal Court of First Instance of Istanbul IN ORDER TO HOLD A RETRIAL so as to remove the violation and the consequences thereof as per Article 50 (1) and (2) of the Code No. 6216.
