Press Release No: Individual Application 7/18
09.02.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF FREEDOM OF EXPRESSION OF A LAWYER WHO CRITICIZED THE PUBLIC PROSECUTOR AT A HEARING

On 27 December 2017, the Second Section of the Constitutional Court found a violation of freedom of expression safeguarded by Article 26 of the Constitution in the individual application lodged by Keleş Öztürk (no. 2014/15001).

The Facts

According to the minutes of the hearing, the applicant lawyer acting as defence counsel of five accused expressed the following things to the public prosecutor after the prosecutor stated his opinion on the merits of the case: “We demand time so that we can prepare our defence against the public prosecutor’s opinion but I do not accept the opinion. I advise that the public prosecutor study law again. He has not studied law or has not read the file or does not rely on the court’s acts or does not appreciate them. We also repeat our previous requests for release, I request my client’s release. [S.Y.’s] statement must be considered. In addition, the action taken within the scope of the case file against [S.Y.] can be inquired. If the court proceedings are not important, then what is the point in these? I request that the court proceedings be taken into account and that the court make an assessment and decide accordingly.

The trial court ordered that the Istanbul Chief Public Prosecutor’s Office be notified in order to take the necessary actions for the offences of insult against a public official on account of his duty, identifying public officials as targets for terrorist organizations and attempting to influence a fair trial, due to the applicant’s words against the public prosecutor. Hence, a criminal complaint was filed in this respect.

It is stated in the report drawn up by the lawyers of other accused in the hearing, the applicant did not use expressions of “I advise that the public prosecutor will study law again. He has not studied law” rather he said that “I graduated from the Istanbul Faculty of Law and I don’t know which faculty the prosecutor graduated from”. The next day, the applicant petitioned against the minutes of hearing on the same grounds.

Following the procedural steps, Beyoğlu Chief Public Prosecutor’s Office charged the applicant with insult.

At the end of the proceedings, it was concluded that the applicant had insulted against a public official on account of his duty, by the words “…I advise that the public prosecutor will study law again. He has not studied law…”. Therefore,the applicant was imposed a judicial fine equivalent of 304 days (6,080 Turkish liras (TRY), but the pronouncement of the judgment was suspended. The appeal against the decision was rejected.

Relying on Law no. 6008, dated 22 July 2010, which entered into force after the judgment was, the applicant’s defence counsels requested that the suspension of the pronouncement of the judgment be revoked. Upon the request, the court revoked the decision and continued the proceedings.  

It is established in the proceedings that there was doubt or discussion as to the fact that the applicant had spoken words against the public prosecutor; the differences between the accusation and the defence submissions were related to the content of the words. It was also concluded that the matter whether the public prosecutor studied law or not was not related to official capacity but to his personality. In view of the reasons above, –regard being had to the fact that the applicant and his defence counsels contested the suspension of the pronouncement of the judgment–  the applicant was imposed a judicial fine equivalent to 304 days (TRY 6,080). In its reasoned judgment, the court also found that there was a tense atmosphere during the hearing in which the alleged words had been spoken.

The court’s judgment was upheld by the Court of Cassation and therefore became final. The applicant’s request for objection was rejected by the Chief Public Prosecutor’s Office at the Court of Cassation.

The Applicant’s Allegations

The applicant alleged that there was a violation of his right to a fair trial, on the grounds; that the witnesses for the defence had not been heard, that the contradictions between the reports were not addressed, that the relevant legal provisions were not applied, and that the substantive allegations had not been examined in the court decisions. The applicant further maintained that he was convicted due to his words during the hearing, which is in breach of his freedom of expression.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

In the present case, the applicant, an attorney at law, was imposed a judicial fine due to his words against the public prosecutor at the hearing. There is a dispute regarding the content of the words. The Court does not consider it necessary to examine the trial courts’ decisions as to the certainty of the facts. Therefore, it will solely examine whether the applicant’s words fell under the protection of the freedom of expression.

The applicant used the words while he was performing his duty as a lawyer in the course of a hearing. Given the present case, the interference with the freedom of expression of the applicant, who performed as a defence counsel in the hearing, may be deemed necessary only in very exceptional cases in a democratic society. That’s because, in line with the principles of the equality of arms and the fairness of trial, a free and fiery discussion of allegations may be necessary between the parties.

In the present case, the words were not addressed to the judge, but to the public prosecutor who in essence was the counsel for the prosecution. The public prosecutors are expected to be more tolerant of criticisms against them compared to judges. Therefore, the criticisms against the public prosecutors –a party to the case at the prosecution stage– enjoy a higher protection compared to judges in terms of the freedom of expression.

In the present case, the applicant spoke the words at a hearing during a tense moment after the statement of the prosecutor’s opinion on the merits, as also accepted by the first instance court. Accordingly, it appears that the applicant’s words targeted the public prosecutor’s opinion which he thought was careless. Although the criticism as to whether the public prosecutor studied law or not seems to be extreme, it is understood that the main purpose of this criticism was to criticize the approach of the public prosecutor. Based on his conviction that the prosecutor did not take into consideration certain developments during the proceedings, the applicant expressed a personal judgment against the prosecutor’s attitude towards the case. However, the criticism that may regarded as extreme was assessed by the first instance court without regard to all the words spoken by the lawyer and to the circumstances of the hearing.

It must also be taken into consideration that prosecuting lawyers on account of their words at the hearings may have a deterrent effect on their duty of defending their clients’ interests. Therefore, criminal investigations interfering with the freedom of expression of the lawyers in performing their profession must be resorted to –even though the punishments are not strict– only in exceptional situations.

For this reason, it is concluded that even if it is accepted that the public prosecutor might have been personally offended due to the applicant’s words at the hearing, the interference with the applicant’s freedom of expression through criminal proceedings and penalty due to his words is not necessary in a democratic society.

Consequently, the Constitutional Court found a violation of the applicant’s freedom of expression safeguarded by Article 26 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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