Inadmissibility Of The Allegation Of Violation Of Freedom Of Expression Due To The Disciplinary Penalty Due To The Words Used During The Hearing
Events
At the time of the events, the applicant, who is a lawyer, attended the hearing as defence counsel in a case before the Assize Court (the Court). The Court sentenced the applicant to a judicial fine on the charge of insulting a public officer for his duty due to his remarks against the public prosecutor during the defence. The Constitutional Court examined the applicant’s application for this fine and concluded that his freedom of expression had been violated.
On the same day, the Court notified the Presidency of the Istanbul Bar Association and the Presidency of the Union of Turkish Bar Associations for the disciplinary action to be taken against the applicant. The Disciplinary Board of the Istanbul Bar Association, which analysed the statements in the Minutes of the Hearing, imposed a warning penalty on the applicant based on paragraph (1) of Article 135 of the Attorneyship Law No. 1136. Applicant’s appeal against this decision was rejected by the Disciplinary Board of the Union of Turkish Bar Associations. The lawsuit filed by the applicant for the cancellation of the aforementioned decision was rejected by the Administrative Court. Upon the applicant’s appeal, the decision was upheld by the Regional Administrative Court.
Allegations
Applicant claimed that his freedom of expression was violated as he was penalised with a disciplinary penalty for the words he used during the hearing.
The Court’s Assessment
The diligent fulfilment of the requirements of their duties in accordance with the title of lawyer by those who have chosen the profession of lawyer is one of the primary conditions for maintaining and strengthening the respect and trust that cannot be separated from the title of lawyer.
Lawyers have the right to criticise the functioning of the judiciary, provided that they do not exceed certain limits. These limits are necessary to protect other public officials, including judges and public prosecutors and members of the Supreme Court, who are public servants committed to the proper functioning of the judicial system.
There is no doubt that lawyers must have access to all the means of prosecution and defence provided for by the legal order in order to perform their duties freely and properly. While this right is a requirement of defence immunity, which is a reflection of the independence of lawyers, it is not unlimited. While exercising this right, lawyers should act in accordance with professional rules, should pay attention to the fact that the words and expressions they use against other actors of the judiciary are related to the subject matter of the case, and should not exceed the measure required to protect the interests of the client they represent.
Even in a tense hearing environment, the hearing subjects must show the utmost care and courtesy towards each other and comply with the rules and requirements imposed on them by their profession. Within this framework, lawyers should also show the utmost care, courtesy and common sense in order to ensure that the hearing can be conducted in a healthy manner; they should act in accordance with the reputation and dignity of their profession and in a manner befitting the respect required by their title.
In the concrete case, it appears that there was a dispute about the content of the words spoken by the applicant during his defence against the public prosecutor’s closing statement. According to the Minutes of the Hearing, it is accepted that the applicant said “The prosecutor should re-read the law faculty, either he did not read the law faculty or he did not read the file”. However, the applicant did not accept the Minutes of the Hearing and claimed that he had said the following: “I graduated from Istanbul Law Faculty, I do not know which faculty the prosecutor graduated from, we were not taught this way.
It is clear that the words used do not contribute positively to the clarification of the case in question and the establishment of justice. It is seen that the expressions used exceeded the limits of respect and courtesy, were intended to offend the public prosecutor who announced his opinion rather than performing the defence duty, and were damaging to the ethical rules and reputation of the legal profession.
In order to fulfil their duties properly, lawyers may freely make statements on the merits of the proceedings. Questioning the competence of any of the judicial subjects is not related to the merits of the proceedings and casts a shadow on the dignity of the judicial environment.
The administrative court, after referring to the reasoning of the Assize Court that conducted the criminal proceedings regarding the words subject to the complaint and explaining why it relied on the Hearing Minutes, the content of which was not accepted by the applicant, concluded that there was no violation of law in the decision of the Istanbul Bar Association Disciplinary Board by referring to the Professional Rules of the Union of Turkish Bar Associations.
Considering all of the evaluations and the margin of appreciation that the judicial authorities have when balancing different interests, it was assessed that the state did not violate the applicant’s positive obligations in the context of freedom of expression in the concrete case.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of freedom of expression was inadmissible.
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