23 May 2018 Wednesday

The Facts

The association of KAOS GL Cultural Research and Solidarity (the applicant) was described as “the association of aberrant persons” in in the news of a website on November 6th, 2012.

The lawyer of the applicant association filed a criminal complaint on the ground that the association was insulted and that the content of the news incited people to hatred and hostility. The Chief Public Prosecutor’s Office concluded that where was no ground for prosecution. The objection to this decision was also dismissed.

The applicant’s lawyer subsequently lodged an individual application with the Constitutional Court for alleged violation of the right to protection of honour and dignity. On 8 May 2014, the Court concluded that there was no violation.

On 18 July 2014, the applicant association filed a complaint against the administrator of the website on the ground that describing the association in the news by using the expression of “aberrant persons” constituted the offence of inciting people to hatred and hostility. Taking into consideration that the decision of no ground for prosecution was made upon the investigation conducted into the applicant’s complaint and that this final decision barred the investigation of the same matter, the Chief Public Prosecutor’s office issued a decision of non-prosecution for the second complaint. The applicant’s objection to the decision was dismissed.

The Applicant’s Allegations

The applicant association claimed a violation of the right to protection of honour and dignity violated on the ground that the complaint regarding the impugned news which allegedly contained hate speech was concluded with a decision of no ground for prosecution.

The Court’s Assessment

The applicant company alleges that the expression of “aberrant persons” constituted hate speech against them and homosexual persons the rights of whom they defend.

The meaning of the word “aberrant” is defined as “deviating from the right way” in the dictionary of the Turkish Language Board. Considering the impugned expression independently of what it evokes in the society and of the relevant news as a whole, it appears that it is not such an expression inciting hatred or violence and its literal meaning refers to a situation that is not legitimate according to one’s own opinion.

Hate crimes, including hate speech, increasingly pose a serious threat to pluralist democracies in all over the world, and states have positive obligations to take effective measures in this regard.

In this context, it must be underlined that the State’s fight against the hate speech targeting sexual orientation, also taking into account its dangerous potential inciting violence, by means of criminal proceedings is as important as the freedom of the press for the functioning of democracy and rule of law. The press, being aware of its impact on the society, must act responsibly in this respect.

Nevertheless, the impugned news cannot be said to constitute a threat of inciting hatred and violence that requires criminal proceedings, as well as the expression complained of cannot be said to have reached the level of hate speech.

Consequently, the Constitutional Court has concluded that the termination of the investigation process in an early stage did not result in violation of the right to protection of honour and dignity safeguarded in Article 17 of the Constitution in the present case.