Resource guide of turkish high court judgments on freedom of expression
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- RESOURCE GUIDE OF TURKISH HIGH COURT JUDGMENTS ON FREEDOM OF EXPRESSION EXCERPTS FROM CONSTITUTIONAL COURT, COURT OF CASSATION AND COUNCIL OF STATE JUDGMENTS
- CONTENTS
- Module 2: Conditions of Limitation
- FUNDAMENTAL PRINCIPLES AND SOURCES DEFINITION OF FREEDOM OF EXPRESSION
- SIGNIFICANCE OF FREEDOM OF EXPRESSION
- FREEDOM OF EXPRESSION IS A RIGHT FOR EVERYONE
- FREEDOM OF EXPRESSION IS CRITICAL FOR THE PROTECTION OF OTHER HUMAN RIGHTS
- RELATIONSHIP BETWEEN FREEDOM OF EXPRESSION AND FREEDOM OF ASSEMBLY
- ELEMENTS OF FREEDOM OF EXPRESSION
- CONDITIONS OF LIMITATION FREEDOM OF EXPRESSION IS NOT ABSOLUTE
- LIMITATIONS MUST BE EXCEPTIONAL
EU-CoE Joint Project Capacity Improvement of the Turkish Judiciary on Freedom of Expression
This resource guide is designed as an auxiliary training material for freedom of expression courses to be given during the training programs of the Turkish Justice Academy as part of the EU-CoE Joint Project on Capacity Improvement of the Turkish Judiciary on Freedom of Expression. The resource guide includes excerpts from high court judgments that are arranged according to common topics covered in pre-deployment and on-the-job training programs. This aims to indicate how key principles and concepts for the protection of freedom of expression are applied by the Constitutional Court, Court of Cassation and the Council of State in reference to ECHR case law. These judgments were chosen according to the recommendations of judges and prosecutors in the Working Group established for the development of training materials and modules for the project. This resource guide is not a reference book for judges, prosecutors or academics. It is a practical tool for training purposes. Trainers may use the methods outlined in this material to refer to other judgments during training. The Turkish Justice Academy is recommended to update this resource guide at regular intervals. CONTENTS OVERVIEW
Module 1: Fundamental Principles and Sources Definition of freedom of expression Significance of freedom of expression Freedom of expression is a right for everyone Freedom of expression is critical for the protection of other human rights Relationship between freedom of expression and freedom of assembly Elements of freedom of expression Role of the media Freedom of information Content of expression Forms of expression Artistic expression Print media
Freedom of expression is not absolute Limitations must be exceptional Conditions of limitation Implementation of the 3-step test with reference to the European Court of Human Rights Interference with the freedom of expression Prescription in Law Legitimacy Necessity in a democratic society Proportionality Protecting the substance of the right EXCEPTIONAL SITUATIONS Module 3: Defamation Right to protect personal reputation Publication of personal information and defamation Ascertaining an act of defamation Fair balance between freedom of expression and the protection of others’ reputation Severity of injury against personal reputation Rude and disturbing statements that are not defamatory in nature Severe and disturbing criticism that is not defamatory in nature Narrower interpretation of defamation for politicians and high-level public officials Proof of facts and values judgments Considering public benefit Protection of prosecution and defense immunities Criminal punishment of defamation Chilling effect Module 4: Terrorism Inciting resentment and enmity among people Endorsing the crime and criminal Terrorist propaganda must be public Intention of terrorist propaganda when a statement is considered as a whole Propaganda that attempts to legitimize or endorse coercive, violent or threatening methods of terrorist organizations Open, clear and present danger The duty of the press to inform Protection of defense immunity
"Freedom of expression means a person's freedom to access news, information and ideas of others, avoid persecution due to their opinions and thoughts, and openly express, explain, defend, impart and disseminate such opinions and thoughts, whether alone or with others, via different methods." SIGNIFICANCE OF FREEDOM OF EXPRESSION Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014) "Freedom of expression is a fundamental pillar of a democratic society and is indispensable for the improvement of society and the development and realization of the individual. The light of truth shines from the clash of ideas. Ensuring social and political plurality depends on the peaceful and free expression of all thoughts. Similarly, individuals can only realize themselves in an environment where ideas are freely expressed and discussed. Freedom of expression is a value that we require in defining, understanding and comprehending ourselves and others, and in determining our relationships to others.” FREEDOM OF EXPRESSION IS A RIGHT FOR EVERYONE Constitutional Court (Abdullah Öcalan Application: 2013/409, Judgment Date: 25/6/2014) "Restricting a person's freedom of expressing and disseminating their thoughts based solely on their personality cannot be justified; furthermore, the expression of opinions and thoughts by a member or leader of a banned organization cannot be the sole justification for intervening in the freedom of expressing and disseminating thoughts. Since such an interpretation may prevent some persons and groups from exercising the rights guaranteed by Article 26 of the Constitution, it is unacceptable in terms of exercising one's constitutional rights." Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014) "One must keep in mind that freedom of expression is for 'everyone'. There is no doubt that the applicant, who is an inmate of a high-security prison, is as entitled to the rights defined in Article 26 of the Constitution as everyone else. On the other hand, it is not possible to maintain order and security in a prison without legal regulations designed to prevent activities that may undermine discipline. One must also consider that the purpose of committing convicted individuals to prison is depriving the convicts of their freedom, as well as enabling the convicts to be rehabilitated into the society after they serve their sentence by engaging in certain activities during their imprisonment." FREEDOM OF EXPRESSION IS CRITICAL FOR THE PROTECTION OF OTHER HUMAN RIGHTS Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014; İlhan Cihaner Application: 2013/5574 Judgment Date: 30/06/2014; Fatih Taş Application: 2013/1461 Judgment Date: 12/11/2014) "Freedom of expression is directly related to a significant number of rights and freedoms guaranteed by the Constitution. Freedom of press, which guarantees the dissemination of ideas, opinions and information through visual and print media, is one of the instruments whereby the right to express and disseminate thoughts is exercised. Freedom of press is guaranteed in Article 10 of the ECHR which refers to the freedom of expression, and is regulated in Articles 28 to 32 of the Constitution. RELATIONSHIP BETWEEN FREEDOM OF EXPRESSION AND FREEDOM OF ASSEMBLY Court of Cassation (General Council of Criminal Law, File Number: 2014/9-147, Judgment Number: 2014/376) "Freedom of assembly and the right to express one's opinions as a result of this freedom constitute the foundations of a democratic society. The essence of democracy is the power to solve problems in an environment of open discussion." "One of the objectives of the freedoms of association and assembly in Article 11 of the Convention is the protection of personal opinions guaranteed in Article 10. The right to peaceful assembly and demonstration may be considered another manifestation of the freedom of expression, and is a fundamental right in a democratic society. Individuals may assemble for political, social, cultural and similar reasons and may hold demonstrations, marches and rallies to express their opinions collectively. When restricting the use of the right of assembly and demonstration, Article 11 of the Convention must have a narrow interpretation and must be considered together with the case law developed under Article 10 of the Convention. The right to peaceful assemblies and demonstrations are under protection similar to the freedom of expression." (Osman Doğru-Atilla Nalbant, İnsan Hakları Avrupa Sözleşmesi-Açıklama ve Önemli Kararlar, Vol. 2, Council of Europe, Presidency of the Court of Cassation of Turkey, 1st Ed., Ankara 2013, p. 430); "Freedom of expression, therefore freedom of assembly and demonstration, include a degree of exaggeration and even provocation." "As an individual right, freedom of thought is often used in conjunction with the collective freedoms of the rights of assembly and demonstration. In other words, assemblies and demonstrations are complementary elements of a democratic system and often serve the purpose of expressing and disseminating a thought or opinion." “The Ollinger/Austria (29.09.2006, 76900/01) and Barankevich/ Russia (26.07.2007, 10519/03) judgments of the European Court of Human Rights clearly state the connection between assemblies and demonstrations and the freedom of expression, from which it can be inferred that assemblies and demonstrations are ordinary and legitimate methods, are congruent with the substance of expressing thoughts and opinions, and must be considered one of the methods to express thoughts and opinions. It is possible to consider demonstrations among the methods of expressing thoughts and opinions set forth in Article 33, Paragraph 1 of the Law numbered 2911 and specified in Article 23 Paragraph (b), namely using banners, posters, pictures or slogans." ELEMENTS OF FREEDOM OF EXPRESSION Council of State (13th Chamber, E:2014/3811-Dissenting opinion) "In order to claim freedom of expression, the individual must be able to freely access differing ideas and thoughts, make (free) choices among these ideas (i.e. hold an opinion), and be able to freely share their chosen ideas and opinions with others. The combination of these three elements makes up freedom of expression." ROLE OF THE MEDIA Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014 "The checks and balances provided by public and press scrutiny are as important to democratic systems as administrative and judicial oversight in order to ensure that the wielders of public authority use their powers within legal limits. Since the functionality of the press as the overseer of public administration on behalf of the people depends on its freedom, freedom of press is a vital freedom that applies to everyone." Constitutional Court (Fatih Taş Application: 2013/1461, Judgment Date: 12/11/2014) Freedom of press enables the dissemination and circulation of ideas to inform the individual and society. A pluralist democratic society requires that thoughts, including those in opposition to the majority opinion, are expressed via all means available, stakeholders are won for the expressed thought, the thought is put into practice, and others are persuaded to practice the thought. Therefore, the freedom to express and disseminate opinions and the freedom of press are vital for the functioning of democracy (Application No: 2013/409, 25/6/2014, § 74). In a democratic society, the actions and procedures of the government must be under the supervision of the press and public, as well as administrative and judicial authorities. Visual, audio and print exercise close scrutiny over the political decisions, actions and negligence of bodies exercising public authority and facilitate the participation of citizens in decision-making processes, thereby ensuring that democracy functions properly and individuals can realize themselves. Therefore, freedom of press applies to everyone and is a vital freedom (Application No: 2013/409, 25/6/2014, § 75).
Freedom of press is instrumental in letting the public know about the conduct of administrators and opening their actions to public scrutiny. Freedom of press is the freedom to impart and disseminate news and information that concern the public." FREEDOM OF INFORMATION Constitutional Court (Özkan Kart Application: 2013/1821, Judgment Date: 5/11/2014) "Freedom of expression means a person's freedom to access news, information and opinions of others, avoid persecution due to their opinions and thoughts, and openly express, explain, defend, impart and disseminate such opinions and thoughts, whether alone or with others, via different methods (Application No: 2013/2602, 23/1/2014, §40). There is no doubt or dispute about the fact that the freedom to acquire information and opinions is an inseparable part of freedom of expression."
The right to access news or ideas is among the elements of freedom of expression. Freedom of expression means a person's freedom to access news, information and opinions of others, avoid persecution due to their opinions and thoughts, and openly express, explain, defend, impart and disseminate such opinions and thoughts, whether alone or with others, via different methods.
“The freedom to express and disseminate thought includes not only the freedom to 'have opinions and thoughts' but also to 'express and disseminate one's thoughts and opinions' and, as a result, the freedom to 'receive and impart news and opinions'. In this respect, the freedom of expressing and disseminating thoughts means a person's freedom to access news, information and opinions of others, avoid persecution due to their opinions and thoughts, and openly express, explain, defend, impart and disseminate such opinions and thoughts, whether alone or with others, via different methods (Application No: 2013/2602, 23/1/2014, § 40). The existence of social and political plurality depends on the peaceful and free expression of all thoughts. Similarly, individuals can only realize themselves in an environment where ideas are freely expressed and discussed. Freedom of expression is a value that we require in defining, understanding and comprehending ourselves and others, and in determining our relationships to others (B. No: 2013/2602, 23/1/2014, § 41). The European Court of Human Rights (ECHR) frequently emphasizes that freedom of expression is “one of the fundamentals of a democratic society which is essential for the advancement of society and the development of the individual". According to the ECHR, "freedom of expression in Article 10, Paragraph 2 is applicable not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no democratic society." (cf. Handyside v. United Kingdom, Application No: 5493/72, 7/12/1976, § 49). FORMS OF EXPRESSION Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014) "The instruments to be used when exercising freedom of expressing and disseminating thought are specified as 'words, text, pictures and other means' where 'other means' place any and all methods of expression under Constitutional protection." Council of State (13th Chamber, E:2013/1727) "Freedom of expression means an individual's freedom to access news, information and opinions of others, avoid persecution due to their opinions and thoughts, and openly express, explain, defend, impart and disseminate such opinions and thoughts, whether alone or with others, via different methods." "The Constitution guarantees not only thoughts and opinions, but also the modes, methods and means of expression. The instruments to be used when exercising freedom of expressing and disseminating thought are specified as 'words, text, pictures and other means' where 'other means' place any and all methods of expression under Constitutional protection."
"In this respect, Article 26 and more specifically Article 27 of the Constitution contain the freedom of artistic expression as a means of acquiring information and opinions and disseminating thoughts, and such Constitutional safeguards present opportunities to take part in the expression, dissemination and exchange of any cultural, political and social information and idea (cf. Mutatis mutandis, Müller and others / Switzerland Application No: 10737/84, 24/5/1988, § 27). As frequently mentioned by the ECHR, persons who create, distribute or display works of art such as the poems in the books that are subject to the application in question make a significant contribution to the dissemination of ideas and opinions; consequently, they artistic works are of great importance for a democratic society. Therefore, the State must be additionally cautious about its obligation to refrain from unnecessary intervention in the freedom of expression of individuals who create works of art (cf. Müller and others / Switzerland Application No: 10737/84, 24/5/1988, § 33)." Considering that the books in question are poetry books, it must be kept in mind that Articles 26 and 27 of the Constitution guarantee not only the content of the expressed ideas and information but also the means of expressing them, and that the books in question are poetry which is a type of fiction."
"The press is the principle means of disseminating thought by way of newspapers, journals or books, and is a way in which freedom of expression is exercised. Freedom of press does not have a discrete article in the ECHR, but is guaranteed under freedom of expression in Article 10. Article 10 of the ECHR protects not only the content of thoughts and opinions but also the means of expressing them. On the other hand, freedom of press is specifically regulated in Articles 28 to 32 of the Constitution (Application No: 2013/409, 25/6/2014, § 73).” CONDITIONS OF LIMITATION FREEDOM OF EXPRESSION IS NOT ABSOLUTE Constitutional Court (Abdullah Öcalan Application: 2013/409, Judgment Date: 25/6/2014) "Freedom of press, complementing freedom of expression and enabling it to be exercised, is not absolute and unlimited; neither is freedom of expression. In order to fulfill its social duty, the press must be free while also acting in a responsible manner. The press is required to remain within the limitations imposed in Articles 26, 27 and 28 of the Constitution to protect the internal and external security of the State, its indivisibility with the country and the nation, and to prevent inciting revolt or criminal activities." Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014) "Freedom of expression is not absolute and, as a right, it is subject to the limitation of fundamental rights and freedoms defined in the Constitution." Constitutional Court (Fatih Taş Application: 2013/1461, Judgment Date: 12/11/2014) Freedom of press, complementing freedom of expression and enabling it to be exercised, is not absolute and unlimited; neither is freedom of expression. In order to fulfill its social duty, the press must be free while also acting in a responsible manner. The press is required to remain within the limitations imposed in Articles 26, 27 and 28 of the Constitution to protect the internal and external security of the State, its indivisibility with the country and the nation, and to prevent inciting revolt or criminal activities; it also has the right to impart information on political matters. The people, on the other hand, have the right to receive such information. Freedom of press is one of the best means to convey political ideas and attitudes to the public and to enable the public to have an opinion about these." LIMITATIONS MUST BE EXCEPTIONAL Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014) "It must be noted that the state and public authorities have discretion over the limitation of freedom of expression and press. However, this discretion is subject to the oversight of the Constitutional Court. When exercising discretion based on justification with the requirements of a democratic society, proportionality, and integrity of essence, the assessment must be specific, detailed and differentiated by the type, form, content and timing of the expression and the reasons for limitation, rather than making a generalized and abstract assessment. The criteria of justification with the requirements of a democratic society and integrity of essence require that limitations on freedom of expression are mandatory or exceptional measures and are employed as a last resort or measure. The ECHR defines the requirement of limitation in a democratic society as a "pressing social need." Accordingly, if the limitation is not imposed to respond to a pressing social need or used as a last resort, it cannot be considered justified with the requirements of a democratic society. Similarly, when investigating the presence of a pressing social need, generalizations and abstractions must be avoided and aspects such as the capacity of the person making the expression, the identity of the addressed party and their reputation, the content of expression, and whether the expression contributes to a discussion pertinent to the benefit to society need to be taken into consideration." Court of Cassation (Criminal General Council, File Number: 2007/8-244, Judgment Number: 2008/92) "It is widely accepted that limitations on the freedom of expressing opinions must be interpreted as narrowly as possible, ensuring that there is an important or pressing social need, that the limitation is imposed for a legitimate purpose, that there is never excessive limitation is always avoided, and that the limitation does not hinder individual or social development in any way." Court of Cassation (Criminal General Council 2009/9-190 E., 2009/253 K.) "It is understood that the exercise of these freedoms may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. However, it is widely accepted that Yüklə 152,29 Kb. Dostları ilə paylaş:
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