The Turkish Constitutional Court recently handed down certain decisions related to social media posts which touch on different aspects of the rights and freedoms guaranteed under the Turkish Constitution (Decisions numbered 2018/12551 and 2020/13412 published on the Official Gazette of February 23, 2021 and decision numbered 2017/31971 published on the Official Gazette of February 25, 2021).

(i) Decision numbered 2018/12551

This decision concerns the applicant's claims on violation of his freedom of expression due to a judicial fine imposed for criticizing a politic figure through a comment posted on Facebook. According to the decision, the plaintiff, who was an active political figure at the time of the applicant's comment, posted a text on his Facebook page in tribute to the Republic of Turkey's seventh president, Kenan Evren at the anniversary of his death. The applicant commented on this post by criticizing the plaintiff. Eventually, the applicant was subjected to a judicial fine imposed by Ankara 35th Criminal Court of First Instance on February 7, 2018, due to the complaint filed by the plaintiff who claimed that the comment posted by the applicant was defamatory.

The applicant claimed in his individual application that there was no expression in his comment which might be deemed to be defamatory, the applicant criticized the plaintiff's post as the plaintiff was a candidate member of parliament from the region where the applicant resides and imposing a judicial fine due to his comment violates his freedom of expression and the right to a fair trial. Accordingly, the applicant filed an application before the Constitutional Court on April 19, 2018.

The Constitutional Court first determined that the applicant's claims should be reviewed within the scope of freedom of expression as per Article 26 of the Constitution. In this regard, the Constitutional Court stated that the decision of Ankara 35th Criminal Court of First Instance had interfered with the applicant's freedom of expression and proceeded to evaluate whether this interference has resulted in violation of the applicant's freedom of expression by taking into account the criteria laid out under Article 13 of the Constitution (legality, legitimate reason, accordance with the requirements of a democratic society, and proportionality). The Constitutional Court further stated that the applicant's statements contained cynical yet non-defamatory expressions including his thoughts on the plaintiff's political views being flawed. The Constitutional Court underlined that although the wording of the comment might sound inappropriate, the freedom of expression covers even hurtful, shocking and disturbing expressions, by also stating that since the plaintiff is a political figure, the limits of criticism should be expected to be broader.

According to the decision, Ankara 35th Criminal Court of First Instance failed to take into consideration the circumstances surrounding the relevant period, context of the expression and the plaintiff's social status in its evaluation of the case and did not attempt to create a balance between the freedom of expression and the plaintiff's reputation and dignity.

Consequently, the Constitutional Court found Ankara 35th Criminal Court of First Instance's rationale to be insufficient for interference with the applicant's freedom of expression and concluded that freedom of expression protected under Article 26 of the Constitution has been violated.

(ii) Decision numbered 2020/13412

The case concerns the applicant's claims on the violation of personal liberty and security due to the detention measure imposed with regard to certain posts shared on his social media. Apparently, as a result of an investigation initiated against the applicant, the applicant was arrested on the grounds of provoking a certain part of the public against another, and insulting their religious values through his posts shared on social media and had been held in detention during the proceedings, as well. The applicant filed an objection against the decision on continuation of detention and eventually filed an individual application before Constitutional Court.

In its evaluation, the Constitutional Court did not take into consideration the posts which allegedly insulted religious values since they were not the basis of detention. As to the other posts that allegedly provoked a certain part of the public against another and which were the basis of detention, the Constitutional Court referred to the jurisprudence of the Court of Cassation on the crime of "Provoking the Public to Hatred and Hostility, or Degrading the Public" (Court of Cassation 18th Criminal Chamber E.2018/3616, K.2019/598).

The Constitutional Court further stated that the investigating authorities did not indicate what the imminent danger was in these posts and the investigation documents did not include how the posts of the applicant created a specific danger and therefore, there was no strong indication that the arrest had been necessary.

In conclusion, the Constitutional Court decided that the claim of unlawful arrest is admissible and found that the applicant`s personal liberty and security protected under Article 19 of the Turkish Constitution had been violated.

(iii) Decision numbered 2017/31971

This decision is regarding an applicant's claims on the violation of his constitutional rights due to termination of his employment contract on the grounds that certain social media posts of the applicant damaged the trust relationship between the employee and the employer. According to the decision, the applicant had been working at a municipality since 2004. Following the coup attempt of July 15, 2016 (which is claimed to be made by the Gulen Terrorist Organization - FETO), a report was drawn up about the applicant by the Directorate of Science and Technology of Sehitkamil Municipality. According to the report, the applicant, with his social media posts, made groundless accusations against the state regarding its actions and anti-terrorism activities, which were incompatible with the ethics and good faith, impugned the dignity of the state, and abused the trust of the employer, since the applicant was working in a public institution. The Municipality, as the employer, terminated the applicant`s employment contract on the same day based on the abovementioned reasons and in accordance with the Article 25/2 of the Law No. 4857. Subsequently, the name of the applicant was included under Attachment 4 of the Decree No. 677 on Taking Certain Measures in the State of Emergency, which listed the public officials who were dismissed from public service. The applicant filed a lawsuit demanding reinstatement to work and determination of the termination as unfair dismissal. His request was rejected and accordingly, he filed an individual application before the Constitutional Court.

According to the decision, the applicant argued that his social media posts, which were the basis for the termination of the employment contract, did not constitute a crime and they were merely consisted of "liking" the posts of others, and therefore, his constitutional rights were violated. However, the Constitutional Court noted that the applicant did not evaluate the content of his social media posts within the application form and did not attach any information or document regarding these posts.

The Constitutional Court concluded that the applicant could not substantiate his claims that the findings of the administration and courts were incorrect, and also the applicant did not make any explanations as to the nature of his social media posts, but merely stated that these expressions did not constitute a crime. The Constitutional Court, by asserting that the remit of the Constitutional Court is limited to the reasons put forward in the application form, concluded that the applicant had not provided adequate evidence as to which of his constitutional rights were violated with sufficient reasoning nor shown the grounds of his allegations of rights violation.

Consequently, the Constitutional Court decided that the applicant could not justify his allegations since he did not provide evidence regarding the alleged violation and did not give explanations as to which of the rights within the scope of the individual application was violated, and therefore the application was inadmissible due to the obvious lack of legal basis.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2021. A link to the full Legal Insight Quarterly may be found here

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