JUDGMENT ON FREEDOM OF EXPRESSION AND PRESS IN BEKİR COŞKUN’S APPLICATION
The Constitutional Court in its plenary sitting on 4/6/2015 held in its judgment on individual application of Bekir Coşkun (App. No: 2013/12151) that the applicant’s freedom of expression and freedom of the press were violated by the judgment of the court of first instance convicting the applicant to a custodial sentence in the criminal case filed against the applicant for his column in a daily newspaper.
The applicant is a columnist in a nationwide daily newspaper called“Cumhuriyet”(English: The Republic).
The applicant penned an article titled “Painted Stairs” in the issue of the newspaper dated 4/7/2013 on the protests of painting the stairs which started in Istanbul and escalated into nationwide.
Chief Public Prosecutor's Office of Istanbul filed a criminal case against the applicant on charges of insulting public official who are working as a committee in the said article. Istanbul 2nd Criminal Court of First Instance sentenced the applicant in its judgment dated 29/4/2014 to one year, two months and seventeen days punitive fine on charges of “insulting through the media” and the announce of the verdict was deferred.
The applicants alleged that his punishment for the opinions he expressed in the article was a violation of his freedom of expression and freedom of the press.
The Court's assessment
The Constitutional Court notes that the first paragraphs of Article 26 and 28 of the Constitution bring no restriction to the freedom of expression with regards to the content and that the freedom of expression for real and legal entities includes all forms of expression such as political, artistic, academic or commercial opinions and convictions. The Court emphasizes that classifying an opinion expressed or disseminated as either “worthy- worthless” or “useful-useless” regarding its content amounts to a subjective judgment, and that trying to determine the area of freedom of expression based on these evaluations may lead to arbitrary limitation of this freedom. In Court’s opinion, freedom of expression also includes freedom of announcing and disseminating thoughts that are considered ‘worthless’ or ‘useless’ by others.
The Constitutional Court determined for the concrete application that the interference to applicant’s freedom of expression is a part of the measures aiming the “protection of the reputation or rights of others”. The Court recalls that its duty is to make an assessment on whether a fair balance was struck between the applicant’s freedom of expression and protection of the reputation or rights of others in a democratic society.
Before the publishing of the said article in the newspaper, a series of social protests publicly known as“Gezi demonstrations” took place in June 2013 and, afterwards, the protests of painting the staircases started in various places of Turkey for alleged purposes of increasing the awareness on protecting environment. On the date of incidents, some of the municipalities did not permit to protests of painting the staircases also called as“rainbow protest” and they repainted the staircases back to their original colors.
In Court’s opinion, the article subject to application was penned as a part of the ongoing discussions in the press and media organs and political spheres on the date of the incidents. The applicant’s expressions that caused his conviction criticize waggishly the reactions by some municipal officials and politicians against the protest of painting the cities’ staircases initiated by individuals to draw attention in their way to the environmental problems after the incidents known as “Gezi demonstrations” which occupied the public agenda for quite a long period of time. The applicant makes a reference to news in the media stating that colors of the General Assembly Hall of the Turkish Grand National Assembly, especially red color of the seats, have a negative impact on the mood of the deputies and he criticizes that a colorful environment is not welcomed by the politicians.
The Constitutional Court emphasized that freedom of expression largely guarantees the freedom to criticize and, therefore, it must be seen normal that the phrases used in expressing and disseminating the thoughts may be harsh. The Court further emphasized that the freedom to political debates is “the core principle of all democratic systems”.
The ruling noted that the public authorities should tolerate even harsh criticisms considering the public power they hold. In Court’s opinion, in a healthy democracy, government should not checked by only legislative or judicial powers, but also by non-governmental organization, the media and press or other political actors such as political parties. Likewise, tolerable limits to criticism of politicians are wider than other people's. Unlike others, a politician intentionally opens each of his or her statements and actions to the public, as well as other politicians’ scrutiny. That is why they must have a wider tolerance to criticism. Therefore, political expression shall not be restricted unless there are force majeure conditions.
In Court’s opinion, although the announcement of the verdict is deferred and the applicant is released on probation, there is always a risk for execution of that punishment during this probation period as the applicant is a writer. The concerns for being subject to sanctions have an interruptive effect on people and, although the person concerned is likely to complete his period of probation without a new conviction, it is probable that the person under the effect of such concerns may refrain from expressing his opinions or press activities.
Consequently, the Court stated that the interference to applicant’s freedom of expression and freedom of the press for the purpose of the “protection of the reputation or rights of others”is not necessary in a democratic society. 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.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.