23 May 2018 Wednesday
Eyüp Hanoğlu (no. 2015/13431, 23 May 2018)
The Facts
During public debates on abortion, İbrahim Melih Gökçek, the then Mayor of the Ankara Metropolitan Municipality, sent the following private direct message “Have you undergone several abortions? This is why you cry out so much?” to a woman through a social media platform, namely Twitter. Then, the woman posted this message through her Twitter account so that every Twitter account holder could see it.
Upon this post, two hashtags “#UnembarrassedMelihGökçek” and “#ShamelessMelih Gökçek” were started on Twitter. The applicant also posted a tweet with hashtag “#UnembarrassedMelihGökçek” through his Twitter account.
Mr. Gökçek (complainant) brought an action for non-pecuniary damages arguing that his personality rights were attacked because the applicant used in his post the term “unembarrassed” and it was exposed to his followers in large number.
Finding that the complainant was insulted, the competent court awarded non-pecuniary compensation in his favour. The applicant’s appellate request was dismissed by the Court of Cassation as the award was under the amount specified in the relevant Law.
The Applicant’s Allegations
The applicant argued that his freedom of expression was breached due to the award of compensation against him on account of his posts that were in the nature of criticism towards a politician.
The Court’s Assessment
The Constitutional Court constantly underlines that politicians are to tolerate more criticism as public figures and holders of public power; and that the limits of criticisms towards them are much broader.
As the statement in the present case is directed against a well-known politician, limits of acceptable criticism are wider compared to the ordinary citizens. It follows that the complainant must endure a higher level of criticism than an ordinary citizen is required to endure.
Given the circumstances and background of the concrete case, the applicant’s post and the terms used therein had a factual basis. Through his post, the applicant expressed his criticism against the complainant’s post.
The first instance court made an assessment of the applicant’s post without considering the particular circumstances of the case. Therefore, the grounds relied on in awarding non-pecuniary compensation against the applicant cannot be regarded as relevant and sufficient for interfering with his freedom of expression.
For the reasons explained above, the Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution.
