Press Release On The Decision That The Sentencing Of The Lawyer Who Criticised The Public Prosecutor At The Hearing Violates The Freedom Of Expression
Events
According to the minutes of the hearing of the case in which the applicant, a lawyer, acted as defence counsel for five defendants, after completing his final opinion on the merits, he said to the public prosecutor: “We request time to prepare our defence against the final opinion, but I do not accept the final opinion, the prosecutor should re-read the Faculty of Law, he did not read the Faculty of Law, either he did not read the file or he does not take the court’s work as a basis or does not value it, we repeat our previous requests for release, I request the release of my client, [S. Y.’s] statement should be evaluated, moreover, the action taken in this regard in the file related to [S.Y.] can be asked, if the actions taken at the court stage have no value, then what is the point of doing them? I demand that the court evaluate and decide accordingly, taking into account the actions taken at the court.”
The Court decided to notify the Istanbul Chief Public Prosecutor’s Office for the appreciation and execution of the necessary action on the charges of insulting a public officer because of his duty, targeting terrorist organisations and influencing the fair trial, and a criminal complaint was filed.
On the day of the hearing, some lawyers defending other defendants in the same case kept a report in which it was stated that the applicant did not make a statement such as “The prosecutor should re-read the Faculty of Law, he did not read the Faculty of Law”, but that “…he graduated from the Istanbul Faculty of Law, the prosecutor does not know which faculty he graduated from…”. The applicant objected to the minutes on the same grounds the day after the hearing.
After the necessary procedures for the prosecution of the applicant were completed, an indictment was issued by the Beyoğlu Chief Public Prosecutor’s Office requesting the applicant to be sentenced for the offence of insult.
As a result of the trial, it was accepted that the applicant committed insult against a public officer because of his duty with the words “…the prosecutor should re-read the Faculty of Law, he did not read the Faculty of Law…”. Therefore, the applicant was sentenced to a judicial fine equivalent to 304 days (6.080 TL) but the announcement of the verdict was deferred. The objection to the decision was rejected.
Within the scope of the Law No. 6008 dated 22/7/2010, which entered into force after the date of the decision, the applicant’s defence lawyers requested the revocation of the decision to defer the announcement of the verdict and the Court revoked the decision and opened a hearing.
As a result of the trial, it was determined that there was no hesitation and contradiction that the applicant said some words targeting the person of the public prosecutor, that the difference between the claim and the defence was related to the content of the words; it was concluded that the issue of whether the public prosecutor read the law faculty or not was not related to the works and actions of the persons, but to the targeting of the persons of the persons.
On the aforementioned grounds, the Court sentenced the applicant to a judicial fine equivalent to 304 days (6.080 TL), taking into account that the application of deferment of the announcement of the verdict was not accepted by the applicant and his defence lawyers. In its reasoned judgement, the court also stated that the atmosphere was tense during the hearing in which the words subject to the offence were allegedly uttered.
The judgement was upheld by the Court of Cassation and finalised. The applicant’s request for an appeal was rejected by the Chief Public Prosecutor’s Office of the Court of Cassation.
Allegations of the Applicant
Applicant claimed that his right to a fair trial was violated on the grounds that defence witnesses were not heard, contradictions between the minutes were not eliminated, the provisions of the law were not applied and the substantive allegations were not met in the court decisions. Applicant also claimed that his right to freedom of expression was violated due to his conviction on the grounds of his statements during the hearing.
The Court’s Assessment
The Constitutional Court summarised the following assessments within the scope of this claim:
In the case in question, the applicant, who is a lawyer, was sentenced to a judicial fine for some remarks he made towards the public prosecutor during the hearing. There is a dispute as to the content of the remarks. In the present application, the Constitutional Court does not feel the need to evaluate the acceptance of the courts of first instance as to the facts of the case. Therefore, in the present application, it will only assess whether the words used by the applicant, as accepted by the courts of first instance, are protected by freedom of expression.
The words that led to the applicant’s punishment were uttered in the course of the defence lawyer’s practice at the time of the hearing. In the concrete case, interferences with the freedom of expression of the applicant, who is a defence lawyer, may be considered necessary in very exceptional circumstances in a democratic society. This is because the principle of equality of arms and considerations relating to the fairness of the proceedings require the free and, where appropriate, heated discussion of arguments between the parties.
The addressee of the remarks in the case under application is not the judge of the case but the public prosecutor representing the prosecution. Public prosecutors are expected to be more tolerant of criticism than judges. For this reason, criticism of public prosecutors, who are one of the parties to the proceedings at the prosecution stage, enjoys a higher level of protection in the context of freedom of expression than criticism of judges.
In the case in question, the words spoken by the applicant, as accepted by the court of first instance, were uttered in a tense atmosphere during the hearing and against the public prosecutor’s opinion on the merits. Within the framework of these findings, it is seen that the applicant’s words were related to the prosecutor’s closing statement, which he considered to be sloppy from his point of view. Although the criticisms about whether the public prosecutor had read law school or not may be considered exaggerated, it is understood that the main purpose of the criticisms in this regard was to criticise the approach adopted by the public prosecutor in his closing statement.
The applicant expressed a value judgement against the public prosecutor’s attitude towards the case based on his observations that the public prosecutor did not take into account certain developments during the trial. However, the criticism of the public prosecutor’s having studied at law school, which could have been considered excessive by the court of first instance if it lacked a factual basis, was evaluated without taking into account all the words spoken by the lawyer and the circumstances of the hearing.
It should also be taken into account that criminal prosecution of lawyers for their words during defence may have a deterrent effect on their duty to vigorously defend the interests of their clients. In this context, criminal investigations in the context of the freedom of expression of lawyers in the exercise of their profession should only be resorted to in exceptional circumstances, even if the penalties imposed are light.
For these reasons, even if it is accepted that the public prosecutor was personally hurt by the applicant’s words during the hearing, it is concluded that the interference to the freedom of expression by conducting a criminal investigation and prosecution against the applicant in the context of the incident subject to the application is not a necessary interference in a democratic social order.
For the reasons explained above, the Constitutional Court decided that the applicant’s freedom of expression guaranteed under Article 26 of the Constitution was violated.
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