The Applicants Claim That The Award Of Damages Against Them For A News Article They Published In A National Newspaper Violated Their Freedom Of Expression And Press Freedom.
RGT: 09.07.2021
RG NO: 31536
PART ONE
DECISION
APPLICATION OF HACI YAKIŞIKLI AND OTHERS
Application Number: 2019/13768
Decision Date: 26/5/2021
President: Hasan Tahsin GÖKCAN
Members Hicabi DURSUN
Yusuf Şevki HAKYEMEZ
Selahaddin MENTEŞ
Irfan FIDAN
Rapporteur: Gülsüm Gizem GÜRSOY
Applicants 1. Hacı YAKIŞIKLI
2nd Ramazan Fatih UĞURLU
3. Uğurlu Gazetecilik Basın Yayın Matbaacılık Reklamcılık Limitet Şirketi
Attorney for the Applicants: Attorney Ali PACCI
I. SUBJECT MATTER OF THE APPLICATION
1. The application concerns the applicants’ claim that the award of compensation against them for a news article they published in a national newspaper violated their freedom of expression and press freedom.
II. APPLICATION PROCESS
2. The application was filed on 16/4/2019.
3. The application was submitted to the Commission after the preliminary administrative examination of the application form and annexes.
4. The Commission decided that the admissibility examination of the application would be conducted by the Section.
5. The Head of the Section decided to conduct the admissibility and merits examination of the application together.
6. A copy of the application documents was sent to the Ministry of Justice (Ministry) for information. The Ministry submitted its opinion. The applicants submitted a statement against the opinion of the Ministry.
III. FACTS AND CIRCUMSTANCES
7. The facts, as set out in the application form and its annexes, are as follows in summary
8. In May 2010, six international non-governmental organizations (IHH Humanitarian Relief Foundation, Free Gaza Movement, European Campaign to End the Siege on Gaza, Ship to Gaza Greece, Ship to Gaza Sweden and The International Committee to Lift the Siege on Gaza) formed an aid flotilla to deliver humanitarian aid to Gaza with donations collected worldwide. The flotilla, called the Gaza Freedom Flotilla, was intercepted by Israeli military forces on 31/5/2010 and the flotilla was intervened with weapons. During the intervention and the following period, 10 humanitarian aid volunteers lost their lives and 56 of them were injured.
9. The applicants are the reporter, the owner and the publisher of Yeni Akit newspaper (the newspaper) respectively. In the 2/10/2013 dated issue of the newspaper, an article titled “They made the daughter of the martyr cry!” was written in which the photographs of the plaintiff B.C.Ö. were included. B.B.A.’s father C.A., who is mentioned in the news article subject to the application, was shot and killed as a result of the fire opened by Israeli soldiers on the ship “Mavi Marmara”. The relevant part of the article is as follows:
“While the government’s efforts to liberalize those who want to work and study in schools and other institutions of the state with headscarves continue, some ignorant people are spewing hatred and hatred against headscarves just to satisfy their egos. Here is a new example… The daughter of (C.A.A.), who was martyred by Zionist murderers on the Mavi Marmara ship, [B.A.A], who is studying in the 10th grade in Iskenderun, was subjected to pressure and persecution in her school where she went to school wearing a headscarf.
…
Martyr [C.A.A.]’s daughter [B.A.A.], who is studying in the 10th grade at Iskenderun P.K.A.Ö. High School, was subjected to threats by the school teachers and her neighborhood because she came to school wearing a headscarf and was pressured by teachers [B.C.Ö], [N.G] and [A.S.].
Teacher F.; There is No Free Will in National Education!!!
While 10th grade student [B.A.A.] reportedly covered her head of her own free will without anybody’s suggestion and wanted to continue her education in accordance with her beliefs, the pressure of the teachers caused reactions. [B.A.A.] said, ‘Some of our teachers didn’t say anything when I went to class wearing a headscarf, which was the way it should be. However, Teacher F [B.C.Ö] called me after class and asked, ‘Is there a law? ‘ I told her that no law or the Constitution prohibited the headscarf and that I wanted to go to class like this because of my faith and my free will. The teacher then said, ‘There is no free will in national education’ and asked me to uncover my headscarf and come to class like that from now on.
[B.A.A.] stated that she was also subjected to humiliation by other teachers by saying ‘what a disguise’ about her headscarf and that when she talked about free will, her teachers ignored it.
[N.A.]; They will use students to create incidents similar to OHTÖ
[N.A], wife of martyr C.A. and mother of B., said that her daughter had received many threats and asked for help from the authorities. [N.A] said, ‘They are trying to prevent my daughter from living her faith. We heard from her circle of friends that some teachers will not interfere with her headscarf, but will use the students. They say they will beat my daughter after school. Both my daughter’s education and her life safety are in danger. They will put banners in the hands of students and protest like the METU protests. There are threats that they will burn the place down. My daughter wants to study in this way at her school completely of her own volition. We ask all authorities to do what is necessary against those who are trying to prevent this.
School Principal: There are Offending Teachers
In a telephone interview, [S.E], the principal of İskenderun P.K.A.Ö. High School, stated that they were caught between parents, teachers and regulations.
[S.E] said, ‘Some teachers took B. down to the canteen. We told them not to do such things. We have now reported the incident to the authorities, we are waiting for a recommendation from the National Education Department on what to do. When we told [S.E] that we had heard that some teachers at the school were going to use students to create METU-style incidents, [S.E] said: ‘We would never allow such actions. Whoever is going to carry out such actions, let them report them to us, and the governorate and the police will do what is necessary.
Iskenderun District Director of National Education [M.K.] also said, ‘If students and parents apply, we will do what is necessary. It would not be right not to take our students to classes. They can apply to us’.
[Y.K], the vice president of Iskenderun E. Union, said that they will take the incident into consideration and that they will do the necessary legal and humanitarian follow-up and that they will forward the matter to the necessary authorities.
[B.Y]: We are Behind Our Daughter
IHH President [B.Y] said, “No one can threaten a student. Together with our foundation, we stand behind our daughter until the end. Those who threaten her are considered to have threatened us and we return their threatening words to them. Turkey needs to get rid of this prohibitionist understanding with all its cells. Both we and our friends in our Iskenderun branch will provide all kinds of support to our daughter.”
10. Upon the related news article, Hatay Governorate Provincial Directorate of National Education (Directorate) initiated an investigation on the persons mentioned in the news article. As a result of the investigation, with the decision of the Directorate dated 11/10/2013, it was decided that no action was necessary since the allegations against the persons accused in the newspaper article subject to the investigation had not been substantiated.
11. On 5/11/2013, B.C.Ö. requested the publication of a retraction regarding the news article subject to the application. With the decision of İskenderun 1st Criminal Court of Peace dated 7/11/2013, it was decided to publish the text of the retraction. The applicants did not publish the retraction text despite the decision and a lawsuit was filed against them for this reason, but the lawsuit was dismissed due to statute of limitations. The text that B.C.Ö. requested to be published is as follows:
“Our school is a school affiliated to the Ministry of National Education and the management of the school is regulated by various regulations. On November 27, 2012 in the official gazette numbered 28480 published in the official gazette numbered 28480, in the Regulation on the Dress Code of School Students Affiliated to the Ministry of National Education, Article 4, subparagraph e) In the school, the head is open, the hair is clean and undyed, make-up cannot be applied, mustache and beard cannot be grown. There is a provision. This regulation was not written by me. This regulation was written by the Ministry of National Education. This regulation forces students to uncover their heads. The Ministry of National Education also states that those who violate this regulation will be punished with disciplinary action. The teacher’s duty is to inform the school administration to implement the regulation. I have no duty or authority other than to report all students who do not comply with the rules to the administration. In our school, there has been no such thing as a student being expelled from class or being insulted in relation to the aforementioned news report. In addition, the targeting of my name threatens my life safety. The news in the newspaper is baseless and false.”
12. B.C.Ö filed a criminal complaint against the applicant Hacı Yakışıklı, requesting that he be punished for defamation. Iskenderun Chief Public Prosecutor’s Office decided on 2/2/2014 not to prosecute Hacı Yakışıklı on the grounds that the content of the news was a requirement of freedom of the press and the right to inform, that the content was topical and of public interest, and that there were no elements of direct insult and/or other criminal offenses against the complainant.
13. B.C.Ö. filed a lawsuit against the applicants for 6,000 TL non-pecuniary damages, stating that his personal rights were damaged due to the relevant news article.
14. N.A., who was heard as a witness at the hearing of the İskenderun 2nd Civil Court of First Instance (the Court) on 11/5/2017, stated the following in summary
“…I am [B.B.A.’s] mother. My daughter decided to cover her head in the 10th grade. Before she covered her head, she was hesitant and wondered if she would be accepted to school. At that time she saw some news in the Akit newspaper. She saw that some schools in Kayseri were not admitting students or they could not enter. She contacted Hacı Yakışıklı, the reporter of the Akit newspaper in Kayseri at that time, by phone and asked if she could be admitted to school if she covered her head. They told him that there would be no obstacles and that in many schools students could enter the school with their heads covered. [B.B.A] also covered her head and went to school. On the first day she went to school, all three teachers mentioned in the newspaper article reacted. The plaintiff said things like ‘you can’t come in here, a report will be filed against you’ and scolded my daughter by shouting at her. Dozens of students gathered in the hallway witnessed this and put severe pressure on my daughter. Then my daughter spoke to the reporter Hacı Yakışıklı again, who called the school principal, who confirmed this and said that some teachers were putting pressure on the child. In short, in order for my daughter to enter school more easily and for the pressure on her to be lifted, we reported this news in the newspaper as it was, without violating anyone’s personal rights and without slander. The school principal also confirmed these events at that time. Then the news appeared in the newspaper…”
15. At the hearing dated 21/9/2017, B.A.A., who was heard by the Court through instruction, made the following statement in summary
“…I was the one who reported the news to Hacı Yakışıklı who made the news in Yeni Akit newspaper, [B.C.Ö] was our F. Teacher at P.K.A.Ö. High School, it was in the 3rd or 4th week of September 2013, I read on social media and elsewhere that students were going to class with their headscarves. I was a 10th grade student at the time. I went to school on a Friday wearing my headscarf. The first class was a religious culture class. The teacher of this class did not say anything, the next class was f. class, the plaintiff [B.C.Ö] entered the class and did not say anything until the end of the class. At the end of the lesson, he said ‘can you come with me’ and we went out together. At the intersection of the stairs upstairs, she told me that she could not attend the class dressed like that. I told him that there was nothing forbidding that students elsewhere could enter the class in this way. He told me to show him if there was a law or regulation that allowed the headscarf to be worn freely. I told him that I would go to class of my own free will and that no law or regulation prevented me from doing so. He then left me saying that he knew what I would do. Other students who had gathered during the incident told me that what I was doing was wrong if there were no regulations, and I told them that I was not preventing them from attending class in this way. After that, students who were against the headscarf became outraged, and they started coming to school in shorts and chains, saying that it was our belief and expressing themselves in this way. So I contacted Hacı Yakışıklı and told him that many girls in İskenderun wanted to go to school wearing headscarves and that it would be in the public interest to make news in this way, so I reported what had happened between [B.C.Ö] and me and told Hacı Yakışıklı what I had told him in court. If the teacher had talked to me in a room, the students who reacted to my wearing the headscarf would not have reacted the way they did, and there would have been no outrage against me… After the news appeared in the newspaper, an inspector entered the school, then the problem at the school ended, everyone started coming to school with their clothes on, and girls all over İskenderun started attending classes with headscarves…”
16. The Court dismissed the case with its decision dated 12/12/2017. The relevant part of the reasoned decision is as follows:
“In cases where freedom of the press and personal values come into conflict: it is inconceivable that the legal order protects two conflicting values at the same time. It will be accepted that one of these two values must prevail over the other, and as a result, it will be accepted that it is appropriate for the less superior interest to remain unprotected in that case and for that moment against the interest that should be held more superior. The main criterion for this is the public interest. While fulfilling this function, both the print and visual media should especially observe the truthfulness of the publication, the existence of public interest, the existence of social interest, the topicality of the subject, and the balance between the substance and nothing while reporting the news. Again, the press must publish within objective limits. The press should not be held responsible for the publication of events that exist at the time and on the surface, but are later found to be untrue.
When the news and witness statements subject to the case are evaluated as a whole; the news is conveyed to the public within the framework of the visible reality of a judicial case, the news is up-to-date and remains within the scope of freedom of the press, as a matter of fact, as it is understood from both administrative investigations and judicial investigations, (B.B.A.), who was heard as a witness by our court, was taken out of the classroom. B.B.A.), who was heard as a witness by our court, was taken out of the classroom and a decision of non-prosecution was made in the judicial investigation opened against the defendants upon the complaint of the plaintiff in this regard, and for the reasons explained, the plaintiff’s request was rejected since it was understood that the balance of conflicting interests was not disturbed against the plaintiff and the reason for compliance with the law was realized in terms of the defendants.”
17. Upon the appeal of the decision, the 3rd Civil Chamber of the Adana Regional Court of Appeals, with its decision dated 26/2/2019, annulled the decision of the trial court on the merits, partially accepted the case, and decided to award a total of 5,000 TL compensation against the applicants jointly and severally. The relevant part of the reasoned decision is as follows:
“… when the integrity of the news article is examined, first of all, the photograph of the plaintiff is used in the news content, and in the content of the news article, ‘Some ignorant people make enmity against headscarves as if they spew hatred and hatred just to satisfy their egos. Here is a new example…’, these statements are not within the scope of the right to criticism and freedom of expression, and by adding the photograph of the plaintiff, a perception was created in an untrue way as if the plaintiff was hostile to religion and hostile to headscarves, and when the news content was examined, the statements of the non-suit [B.B. A.’s] statements, it is understood that the plaintiff only asked questions about why the plaintiff entered the class with her headscarf, and that apart from this, there was no situation such as not allowing the student to take the lesson or not accepting the student to the class, and that there was no incident in which the student was pressured or threatened in this regard, which was used in the news content. As explained above, when the press makes news, it is necessary to take the news in question in accordance with the visible truth. However, when the integrity of the news is considered, it is understood that the news in question is not in accordance with the apparent reality, and in this context, it is understood that making news in this way is an attack on the personal rights of the plaintiff, and it has been decided to partially accept the plaintiff’s lawsuit…”
18. The final decision was notified to the applicants on 18/3/2019.
19. The Applicants filed an individual application on 16/4/2019.
IV. RELEVANT LAW
Article 49 of the Turkish Code of Obligations No. 6098 dated 11/1/2011 and entitled “Liability” is as follows
“Whoever harms another by a negligent and unlawful act is liable to compensate for this damage.
Even if there is no rule of law prohibiting the damaging act, one who intentionally harms another by an immoral act is also liable to compensate for this damage. ”
V. REVIEW AND JUSTIFICATION
21. The application was examined and considered at the meeting of the Court held on 26/5/2021:
A. Claims of the Applicants and Opinion of the Ministry
22. The applicants stated that, as stated in the statements of B.A.A. and his mother N.A., the news article subject to the application was in accordance with the apparent reality, that the plaintiff warned B.A.A. against the law, although he did not have an administrative duty, and that B.A.A. acted in violation of human rights. The applicants argued that the criticism of the plaintiff was due to his own fault, that the news report had a factual basis when the non-prosecution decision against Hacı Yakışıklı, the plaintiff’s statements and witness statements were evaluated together, and that their freedom of expression and freedom of the press were violated due to the award of compensation against them without taking these issues into consideration.
23. In the opinion of the Ministry, it was stated that the compensation awarded against the applicants constituted an interference with their freedom of expression and freedom of the press, that this interference was not proportionate and proportionate as it was not one of the requirements of the democratic social order, that the restrictive measure in question did not meet a compelling social need and was not a last resort.
24. In their statements against the opinion of the Ministry, the applicants repeated the allegations they put forward in the individual application form.
B. Evaluation
25. The relevant part of Article 26 of the Constitution entitled “Freedom to express and disseminate thought” reads as follows
“Everyone has the right to express and disseminate his thoughts and opinions, individually or collectively, by speech, writing, pictures or other means. This freedom includes the freedom to receive and impart information or ideas without interference by official authorities…
The exercise of these freedoms may be restricted … for the protection of the reputation or rights of others …
The forms, conditions and procedures to be applied in the exercise of the freedom to express and disseminate opinion shall be regulated by law.”
26. The relevant part of Article 28 of the Constitution entitled “Freedom of the press” reads as follows:
“The press is free and cannot be censored.
The State shall take measures to ensure freedom of the press and freedom of information.
The provisions of Articles 26 and 27 of the Constitution shall apply to the restriction of the freedom of the press…”
1. Admissibility
27. It is necessary to decide that the claim regarding the violation of the freedoms of expression and the press is admissible, as it is not clearly groundless and there is no other reason to decide on its inadmissibility.
2. On the Merits
a. Existence of Intervention
28. The applicants were jointly ordered to pay 5.000 TL compensation to the plaintiff for their news reports. The court decision in question constituted an interference with the applicants’ freedom of expression.
b. Whether the Interference Constituted a Violation
29. The relevant part of Article 13 of the Constitution reads as follows:
“Fundamental rights and freedoms may be restricted … only for the reasons set out in the relevant articles of the Constitution and only by law. Such limitations … shall not be contrary to the requirements of the democratic social order … and the principle of proportionality. ”
30. The above-mentioned interference would constitute a violation of Article 26 of the Constitution unless it fulfills the conditions set out in Article 13 of the Constitution.
31. Therefore, it is necessary to determine whether the restriction complies with the conditions stipulated in Article 13 of the Constitution and applicable to the concrete application, namely, being prescribed by law, being based on one or more of the justified reasons set out in the second paragraph of Article 26 of the Constitution, not being contrary to the requirements of the democratic social order and the principle of proportionality.
i. Legality
32. It is concluded that Article 49 of Law No. 6098 meets the criterion of limitation by law.
ii. Legitimate Purpose
33. It is concluded that the award of non-pecuniary damages to the applicants is part of measures to protect the reputation or rights of others and pursues a legitimate aim.
iii. Compliance with the Requirements of the Democratic Social Order
(a) General Principles
(1) The Importance of Freedom of the Press in a Democratic Society
34. The Constitutional Court has repeatedly stated that the freedom of expression under Article 26 of the Constitution and the freedom of the press under Article 28 of the Constitution, which are subject to special safeguards, are essential foundations of a democratic society and constitute one of the fundamental conditions for the progress of society and the development of every individual. In this context, freedom of expression and freedom of the press are valid for everyone and vital for the functioning of democracy (Mehmet Ali Aydın [GK], B. No: 2013/9343, 4/6/2015, § 69; Bekir Coşkun [GK], B. No: 2014/12151, 4/6/2015, §§ 34-36), it is clear that freedom of the press provides one of the best means of communicating a variety of ideas and attitudes to the public and forming an opinion on them (İlhan Cihaner (2), B. No: 2013/5574, 30/6/2014, § 63; Hacı Boğatekin (2), 8, No; 2014/12162, 21/11/2017, § 38).
(2) Compliance of the Intervention with the Requirements of the Democratic Social Order
35. In order for an interference with the freedom of expression to be considered compatible with the requirements of the democratic social order, it must meet a compelling social need and be proportionate (Bekir Coşkun, §§ 53-55; Mehmet Ali Aydın, §§ 70-72: Constitutional Court, E.2007/4, K.2007/81, 18/10/2007).
36. During the aforementioned review, the Constitutional Court focuses on the justification of the interference with fundamental rights and freedoms. It is not possible for the interventions made by public authorities to fundamental rights and freedoms without providing a relevant and sufficient justification – that they correspond to a compelling need and are proportionate – to be accepted as compatible with the requirements of the democratic social order. Therefore, interventions to freedom of expression without justification or with a justification that does not meet the criteria set out by the Constitutional Court will violate Article 26 of the Constitution (Kemal Kılıçdaroğlu, B. No: 2014/1577, 25/10/2017, § 58; Bekir Coşkun, § 56; Tansel Çölaşan, B. No: 2014/6128, 7/7/2015, § 56; Zübeyde Füsun Üstel and others, B, No: 2018/17635, 26/7/2019, § 120).
(b) Application of the Principles to the Case
37. The 37th Regional Court of Appeals ruled that the statements in the news article such as “Some ignorant people spew their hatred and hatred against headscarves just to satisfy their egos. Here is a new example…” were not within the scope of the right to criticize and freedom of expression, and that by adding the photograph of the plaintiff, an untrue perception was created as if the plaintiff was hostile to religion and hostile to headscarves. The Court further stated that, as it was understood from B.A.A.’s statements, the plaintiff only asked B.A.A. questions about why she was wearing a headscarf to class, and that apart from this, there was no situation such as not letting the student into the class or not accepting the student into the class, and that there was no incident in which the student was pressured or threatened in this regard. The Court ruled that the news report, in its entirety, did not conform to the apparent reality and was an attack on the personal rights of the plaintiff.
38. In the concrete application, it is observed that some of the statements subject to the applicants’ payment of non-pecuniary damages were characterized as factual allegations by the first instance court. While opinions and comments expressing value judgments are not amenable to proof, reliable evidence must be presented to support claims based on facts that constitute an attack on personal rights (for similar assessments, see Nihat Durmuş and Durmuş Ofset Gaz. Bas. Yay. Mat. Kül. ve Spor Etk. ve Tic. Ltd. Şti, B. No: 2014/5761, 10/5/2018, § 54).
39. According to the Court of Appeal’s acceptance, first of all, it is necessary to clarify whether the applicants fulfilled their duties and responsibilities as a journalist with regard to the factual allegations they put forward. Therefore, in the concrete case, it must be assessed whether the press fulfilled its duty and responsibility to provide accurate and reliable information to the public in good faith in accordance with the ethics and principles of journalism. In this context, for the aforementioned assessment, it will be checked whether the newspaper has conducted sufficient research on the accuracy of the factual allegations it has put forward (for similar assessments, see Çetin Doğan (2) [GK], B. No: 2014/3494, 27/2/20İ9, § 63; Mehmet Doğan Uğurlu and others, B. No: 2015/954, 12/9/2018, § 54; Uğurlu Gazetecilik Basın Yayın Matbaacılık Reklamcılık Ltd. Şti (2) [GK], B. No: 2016/12313, 26/12/2019, § 51).
40. While fulfilling the burden of proof, the applicant is not expected to act like a prosecutor proving the truth of a statement. The obligation to investigate mentioned here should not be understood in terms of concrete reality, but in accordance with the way the event unfolded at the time of publication. It is sufficient for the applicant to demonstrate whether the news sources are reasonably reliable in terms of the allegations in question and whether they are accurate and whether the applicant has made a good faith effort to provide reliable information (for similar assessments, see Orhan Pala, B. No: 2014/2983, 15/2/2017, § 51; Uğurlu Gazetecilik Basın Yayın Matbaacılık Reklamcılık Ltd. Şti.(2), § 52).
41. In the news article subject to the application, one of the main issues on which the Court of Appeal based the compensation is that the allegations that the plaintiff teacher mistreated her student because she came to school wearing a headscarf and that the student faced negative attitudes in this context do not reflect the truth. In the news article, it was claimed that B.A.A. was threatened by school teachers and her neighborhood because she wore a headscarf to school, and that she was subjected to pressure from some teachers, including the plaintiff. At the trial court, B.A.A.’s mother stated that her daughter was criticized by students and threatened by some circles. B.A.A. also stated at the trial court that the plaintiff had left her “saying that she knew what to do” and that she had been insulted by other teachers by saying “that’s a disguise” about her headscarf. In addition, the school principal, S.E., testified that “some teachers took B. down to the canteen and we told them not to do such things”. The applicant therefore appears to have shown all the bases for his factual allegations. Looking at the events as a whole, it is assessed that the people who are the source of the allegations that B.A.A. was subjected to severe pressure and threats – whether true or not – because she wore the headscarf at school were shown in the news article, in this respect, the responsibilities of the journalist were complied with, and the factual allegations were not contrary to the apparent reality and were not groundless.
42. In addition to this, another issue to be taken into consideration in the application is the statements in the news article about the plaintiff, which were found insulting by the Regional Court of Appeal: “Some ignorant people spew their hatred and hatred against headscarves just to satisfy their egos.” There is no doubt that these statements in the news article are value judgments containing harsh and severe criticism. However, even if a statement consists entirely of a value judgment, the proportionality of the intervention should be determined according to whether the disputed statement is sufficiently supported by concrete elements. Because if it is not supported by concrete elements, it can be concluded that the value judgment harms personal rights (Cem Mermut, B. No: 2013/7861, 16/4/2015, § 48). Therefore, these expressions must be examined in the context of the case in question, in the light of the entire relevant part of the article and the way they were said.
43. With the amendment to the regulation on the dress code of students in schools affiliated to the Ministry of National Education, it became possible for secondary and high school students to go to school with headscarves on 27/9/2014. In the period prior to the amendment of the regulation, the issue of whether students of this age could wear headscarves to school was widely debated and these debates were widely publicized. In these debates, it is also known that there was a group of people who opposed the freedom to wear the headscarf in schools and made statements targeting those who wore the headscarf. In this respect, when the date of the article is considered, it is understood that the events described in the article were written in relation to an event that took place on the axis of discussions that constituted a sensitivity for a large part of the society and in which social sensitivity was very high in the recent period before the amendment of the regulation.
44. It may be accepted that the expressions in the news article were offensive to the plaintiff. However, in the opinion of the Constitutional Court, especially public officials should show more tolerance to criticism of their actions. This is because the actions and transactions of public officials have the potential to affect all people living in that country. In this respect, it is one of the indispensable requirements of tolerance in a democratic society that public officials contribute to the decision-making processes of citizens by subjecting their actions and omissions to strict scrutiny. In this context, the mere fact that an opinion expressed is harsh, criticizes the authorities harshly, is expressed using sharp language, or is even one-sided, contradictory and subjective does not mean that it will not benefit from the protection of freedom of expression (for similar evaluations, see. Ali Suat Ertosun (7), B. No: 2014/1416, 15/10/2015, § 36; Zübeyde Füsun Üstel and others, § 128, 129; Nilgün Hallaran, § 45; İlhan Cihaner (2), § 82).
45. In that case, in the course of deciding the application, it should finally be examined whether the applicants unjustifiably targeted the plaintiff in the news article. The allegations in the news article have a factual basis, and the plaintiff has caused her to be heavily criticized in the news article by her own actions, as it is understood that B.A.A. was somehow warned for wearing a headscarf in front of her other friends. In this respect, it is not considered that the plaintiff was directly and arbitrarily targeted. Therefore, it has been concluded that the statements taken as a basis for evaluation by the Regional Court of Appeal are in the nature of a heavy criticism of the opposing attitude of the teachers towards a student wearing a headscarf at school, that they aim to draw attention to this issue, that they are related to a discussion of public interest and that they do not constitute an unprovoked attack.
46. Despite the above findings, the Regional Court of Appeal, without discussing the conditions at the time when the statements subject to the application were used, the context and factual basis of the statements, took some of the statements out of context and without considering that they had sufficient factual basis, and decided to pay compensation against the applicants. When the decision of the Regional Court of Appeal is evaluated together with the conclusions of the Constitutional Court, it cannot be said that the Court struck a fair balance between the applicants’ freedom of expression and the plaintiff’s right to honor and reputation. The grounds provided by the Regional Court of Appeal to justify its acceptance of the case against the applicants were not deemed appropriate and sufficient, and it was concluded that they did not correspond to the social need to justify the restrictions imposed on the applicants’ freedom of expression and freedom of the press under Articles 26 and 28 of the Constitution.
47. For the reasons explained above, it must be decided that the applicants’ freedom of expression and press freedoms guaranteed under Articles 26 and 28, first paragraphs of the Constitution have been violated.
3. In terms of Article 50 of Law No. 6216
48. The relevant part of Article 50 of Law no. 6216 on the Establishment and Trial Procedures of the Constitutional Court dated 30/11/2011 reads as follows
“(1) At the end of the merits examination, it shall be decided whether the applicant’s right has been violated or not. In the event that a decision of violation is rendered, the necessary actions to be taken for the elimination of the violation and its consequences shall be ordered…
(2) If the detected violation is caused by a court decision, the file shall be sent to the relevant court for retrial in order to eliminate the violation and its consequences. In cases where there is no legal benefit in conducting a retrial, compensation may be awarded in favor of the applicant or the applicant may be directed to file a lawsuit before the general courts. The court obliged to conduct a retrial shall decide on the file, if possible, in a way to eliminate the violation and its consequences as explained by the Constitutional Court in its violation decision. ”
49. The applicants requested the determination of the violation and retrial.
50. In the decision of the Constitutional Court in the case of Mehmet Doğan ([GK], B. No: 2014/8875, 7/6/2018), the Constitutional Court set out general principles on how to eliminate the violation when a violation is found. In another judgment of the Constitutional Court, the Constitutional Court, in addition to these principles, also referred to the consequences of not fulfilling the violation decision and pointed out that this situation would mean the continuation of the violation and would result in a second violation of the relevant right (Aligül Alkaya and others (2), B. No: 2016/12506, 7/11/2019).
51. If it is decided that a fundamental right has been violated within the scope of an individual application, the basic rule in order to be able to say that the violation and its consequences have been eliminated is to ensure that it is restored as much as possible, that is, to return to the situation before the violation. For this purpose, first of all, the source of the violation must be determined and the ongoing violation must be stopped, the decision or transaction that caused the violation and the consequences thereof must be eliminated, the material and moral damages caused by the violation, if any, must be compensated, and other measures deemed appropriate in this context must be taken (Mehmet Doğan, §§ 55, 57).
52. In cases where the violation is caused by a court decision or where the court is unable to remedy the violation, the Constitutional Court, pursuant to Article 50, paragraph (2) of Law No. 6216 and Article 79, paragraph (1), subparagraph (a) of the Rules of Procedure of the Constitutional Court, orders that a copy of the decision be sent to the relevant court for a retrial to eliminate the violation and its consequences. The aforementioned legal regulation, unlike similar legal institutions in procedural law, envisages a remedy that results in a retrial in order to eliminate the violation and is specific to the individual application. Therefore, when the Constitutional Court orders a retrial based on the decision of violation, unlike the institution of retrial in procedural law, the relevant court does not have any discretionary authority to accept the existence of the reason for retrial. Therefore, the legal obligation of the court to which such a decision reaches is to take the necessary actions to eliminate the consequences of the ongoing violation by ordering a retrial due to the violation decision of the Constitutional Court without waiting for the request of the person concerned (Mehmet Doğan, §§ 58, 59; Aligül Alkaya and others (2), §§ 57-59, 66, 67).
53. In the examined application, it was concluded that the reasoning of the decision of the regional court of justice ordering the applicants to pay non-pecuniary damages due to the news report was not relevant and sufficient, and therefore the applicants’ freedom of expression and freedom of the press were violated. Therefore, it is understood that the violation arises from the court decision.
54. In this case, there is a legal interest in a retrial in order to eliminate the consequences of the violation of the freedoms of expression and press. The retrial to be held is for the elimination of the violation and its consequences according to paragraph (2) of Article 50 of Law No. 6216, which contains a regulation specific to the individual application. In this context, the work to be done consists of issuing a retrial decision and issuing a new decision that eliminates the reasons that led the Constitutional Court to the conclusion of violation and complies with the principles stated in the violation decision. For this reason, a copy of the decision should be sent to the İskenderun 2nd Civil Court of First Instance to ensure that it is sent to the 3rd Civil Chamber of the Adana Regional Court of Appeals for retrial.
55. The applicants should be ordered to pay a total of TRY 3,964.60 in legal costs, consisting of TRY 364.60 in fees and TRY 3,600 in attorney’s fees, as determined from the documents in the file.
VI. JUDGMENT
For the reasons explained
A. The allegation of violation of freedom of expression and freedom of the press is ACCEPTABLE,
B. that the freedoms of expression and press guaranteed under Articles 26 and 28 of the Constitution have been violated,
C. SEND a copy of the decision to the İskenderun 2nd Civil Court of First Instance (E.2013/577, K.2017/960) to ensure that it is sent to the Adana Regional Court of First Instance 3rd Civil Chamber for retrial in order to eliminate the consequences of the violation of the freedoms of expression and press,
D. TO PAY TO THE APPLICANTS JUDGMENT EXPENSES of TRY 3.964,60 in total, consisting of TRY 364,60 in fees and TRY 3.600 in attorney’s fees,
E. Payment shall be made within four months from the date of the applicants’ application to the Ministry of Treasury and Finance following the notification of the decision, and in case of delay in payment, legal interest shall be charged for the period from the expiry of this period until the date of payment,
F. It was unanimously decided on 26/5/2021 to send a copy of the decision to the Ministry of Justice.
You can access our other article examples and petition examples by clicking here.