Freedom of Expression Decision of the Constitutional Court

Turkey's freedom of expression problems continue to worsen with each passing day. Instead of identifying these problems and advocating for solutions, the Constitutional Court has been making decisions to overlook the issue. In this context, the Constitutional Court has been delaying applications alleging violations of freedom of expression and freedom of assembly for an extended period. In 2022, the Constitutional Court issued a pilot decision by consolidating 19 applications, which had been pending for a long time. These applications were filed by individuals who were tried and sentenced for various crimes, but their verdict announcements (HAGB) were deferred, subjecting them to a five-year supervision period.

In the Atilla Yazar and others application, rather than examining the complaints on their merits, the General Assembly of the Court opted to issue a violation decision based on procedural grounds. The Court's reasoning was that the appeal against the HAGB decision was solely reviewed in terms of the HAGB decision by the heavy penal courts, which act as the appeal authority, and the merits of the first-instance court decision were not assessed. The Court also nullified a provision of the Criminal Procedure Code related to another decision. Subsequently, Article 231, Paragraph 12 of the Code of Criminal Procedure was amended by Law No. 7445, dated 28/3/2023. The amendment stipulates that the appeal authority must review both the HAGB decision and the judgment. However, this amendment does not provide a solution for the applications previously submitted to the Constitutional Court.

This time, in 2023, the Constitutional Court decided to consolidate 610 applications filed between 2014 and 2021. The Court ruled on procedural violations without examining the merits of any of these applications and ordered the courts to conduct a retrial for all cases in question.

It should be noted that these decisions of the Court did not rectify the violations of the applicants' rights. Instead of contributing to the resolution of the issues concerning freedom of expression, these decisions obscured the problems. Firstly, it is questionable whether the judgments can deliver individual justice for the applicants. For many of the applicants, the five-year supervision period has already lapsed, and the conviction has been expunged along with all its consequences. After this stage, a retrial for the same offense would not provide any legal benefits for the applicants. On the contrary, it will subject them to the status of accused once again. Furthermore, there is no clarity regarding which authority will conduct the retrial and the specific issues to be addressed during the retrial. The violation decision was issued based on the objection authority's conduct. In such a scenario, it would be logical for the authority responsible for the violation to remedy it. However, the Constitutional Court sent its decision to the courts of first instance. The first instance courts, however, lack the means to address the procedural problem identified by the Constitutional Court. If, as a result of the retrial, the courts reaffirm the previous decision, it will lead to the absurd outcome of subjecting the applicants to a new review, and they may be compelled to submit an individual application to the Constitutional Court once again. This demonstrates that the Constitutional Court's decision does not provide individual justice for the applicants.

Another problem with this decision is the granting of a single attorney's fee for lawyers handling multiple applications within the 610 consolidated cases. For instance, if a lawyer submitted an application in 2014 for a client charged with insulting the president, in 2018 for another client facing charges of inciting hatred among the public, and in 2021 for another client accused of promoting a terrorist organization, the Constitutional Court will only award a single attorney's fee for merging these applications. It is difficult to argue that this decision is fair and equitable.

Furthermore, the most significant issue lies in the fact that there was no examination of the substance of the applicants complaints, specifically concerning freedom of expression and freedom of assembly. This omission weakened the Constitutional Court's status as an effective remedy for such violations.

The overall impact of these decisions is to obscure the serious issues surrounding freedom of expression in the country. Every year, hundreds of thousands of investigations and lawsuits are initiated, resulting in the punishment of tens of thousands of individuals for their actions falling within the ambit of freedom of expression and freedom of assembly. These actions include various crimes such as insulting the President, public officials, denigrating state institutions, praising crime and criminals, inciting hatred among the public, engaging in terrorist propaganda, and opposing the Law on Meetings and Demonstrations.

Instead of addressing these problems and establishing clear criteria to determine which words and behaviors are protected under freedom of expression, the Constitutional Court veils the issues with decisions that do not even include the events that are the subject of the application, omit the names of the applicants from the text of the decision, and fail to publish the annexes containing the applicants information.