Case Summary and Outcome

Anayasa Mahkemesi, the Turkish Constitutional Court, rescinded the lower court’s decision that the applicant be found guilty for insulting public officials in his column, under Article 301 of the Turkish Penal Code.

Facts

The applicant, Bekir Coşkun, is a columnist in a Turkish nationwide daily newspaper called Cumhuriyet. On July 4, 2013, his article, titled “Painted Stairs”, was published. As the title would suggest, the article discussed the painting of public stairs all around Turkey that triggered a wave of anti-government protests in 2013. The Chief Public Prosecutor’s Office of Istanbul filed a criminal case against the applicant on charges that his article was an illicit criticism against some  Justice and Development Party (AK Party) deputies who had lashed out at demonstrators who had painted stairs.

On April 29, 2014, the Istanbul Second Criminal Court of First Instance sentenced the applicant to almost three months punitive fine on charges of “insulting through the media” which proscribed by the Turkish Penal Code. [1] Mr. Coskun, however, filed an application with the Constitutional Court, alleging that his punishment for expressing his opinion in the article was a violation of his freedom of expression and freedom of the press.

[1] Para. 3 of decision summary, http://www.anayasa.gov.tr/en/About/Press/PressReleases/Detail/7/.

Decision Overview

In evaluating the decision of the lower court, Anayasa Mahkemesi looked at Article 28 and the first paragraph of Article 26 of the Turkish Constitution. The Court concluded that there was a violation of the applicant’s freedom of expression and that the lower court’s decision breached the Constitution. Accordingly, Articles 26 and 28 of the Constitution do not contain restrictions on freedom of expression with regards to content. Furthermore, the Court stated that freedom of expression for real and legal entities includes all forms of expression such as political, artistic, academic, or commercial opinions and convictions.

By making reference to Article 13 of the Constitution, the Court recalled “that its duty is to make an assessment on whether a fair balance is struck between the applicant’s freedom of expression and protection of the reputation or rights of others in a democratic society.” [1] The court noted that for pluralism to exist in Turkey, there must be tolerance to expression that might also be considered inappropriate and offensive.

Since as the article in question was published as part of an ongoing discussion in the media regarding the Gezi demonstrations, the Constitutional Court emphasized that freedom of expression as granted by the Constitution guarantees the freedom to criticize. Therefore, included in this notion is the idea that some of the language used in expression may at times be viewed as harsh and unfavorable to some individuals. Furthermore, the Court stressed that “freedom to [engage in] political debates is ‘the core principle of all democratic systems’.” [2]

The Court recognized that the boundaries of acceptable criticism against politicians is wider than those regarding criticism against private citizens. Additionally, in a healthy democracy, the government should not only be checked by legislative or judicial powers, but also by institutions such as the media/press or other political actors. The Court held that it is not necessary to interfere with the applicant’s freedom of expression in order to protect  “the reputation or rights of others’” (in this case, the reputation of the AK Party). Therefore, the Court ruled that the applicant’s freedom of expression and freedom of the press guaranteed under Article 26 and 28 of the Constitution have been violated.

[1] Para. 6 of of decision summary, http://www.anayasa.gov.tr/en/About/Press/PressReleases/Detail/7/.

[2] Para. 9 of decision summary, id.