Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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Tansel Colasan, the president of the Ataturkist Thought Association and a former Council of State Chief Prosecutor, openly criticised the outcome of a referendum held in September 2010 in Turkey on a series of constitutional reforms proposed by the governing Justice and Development Party. Pursuant to several sets of compensation proceedings initiated by Parliament members against Colasan, a civil court imposed a reprimand against her on the grounds that she had committed an “attack on the personal rights” of the individuals who voted in favor of the reforms.
Colasan then filed a complaint before the Turkish Constitutional Court, alleging that the decision of reprimand amounted to a breach of her right to freedom of expression guaranteed under Article 26 of the Turkish Constitution. The Constitutional Court ruled that the reprimand was in fact a violation of her freedom of expression, reasoning that such interference could not be considered as necessary in democratic society.
After a long debate, the constitutional amendments proposed by the Justice and Development Party was adopted by a nationwide referendum on September 10, 2010. The proposed changes were mainly related to the structure of the Constitutional Court and the Supreme Board of Judges and Prosecutors.
Nine days after the referendum, during a panel discussion held on September 19, 2010, Tansel Colasan accused those who voted in favor of the amendments of being misguided and traitorous. She also stated during a TV show on September 20, 2010 that the ones that had voted in favor of the amendments were uneducated, whereas the “no” voters were the educated group of the society.
As a result of her statements, 58 compensation claims were initiated against Colasan. In five of the proceedings, She was imposed a “reprimand” by civil courts on the basis of Articles 49, 50, and 58 of the Turkish Code of Obligations (Law No. 6098) for making statements that were prejudicial to the honor and reputation of the plaintiffs.
Subsequently, Colasan filed an individual complaint before the Turkish Constitutional Court, alleging in general terms that the decision of reprimand issued by the civil court was a violation of her right to freedom of expression.
The Turkish Constitutional Court found that the reprimand constituted an interference of her right to freedom of expression. The Court, however, noted that the said interference was prescribed by law and pursued the legitimate aim of protecting the reputation of others.
When evaluating the question of the necessity of the interference in a democratic society, the Court considered that there was a need to verify whether the national courts had struck a fair balance between the right freedom of expression and the protection of the reputation of others.
The Court observed that through her statements, Colasan intended to express her own point of view that the voters in favor of the constitutional amendments had made a mistake, and that the country was placed in a dangerous situation. It added that that the national courts had interpreted the impugned statements beyond the real meaning attributed to them.
Furthermore, the Court observed that dozens of actions had been initiated against Colasan, and the national courts accepted them all despite the fact that the victims could not be identified as the impugned statements were targeting a part of the society. Moreover, she was imposed a reprimand five times. The Court considered that such penalty could have a discouraging effect on individuals who are willing to participate to public debates. This would create the risk that people may refrain from expressing and spreading their point of views.
The Court also acknowledged that the statements were related to a matter of public interest and recalled that the limits of permissible criticism are wider in relation to the government or politicians than with regards to a private citizen.
Accordingly, the Court found a violation of the right to freedom of expression guaranteed under Article 26 of the Turkish Constitution.
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