Symposium on the 8th Anniversary of the Adoption of Individual Application
“The Protection of the Fundamental Rights and Freedoms in the Age of the Internet”
23 September 2020, Ankara
“The protection of fundamental rights and freedoms is the raison d’ĕtre of the Constitutional Court”
First of all, I would like to extend you all my most sincere and respectful greetings.
As is known, the quest for the protection of fundamental rights and freedoms is as old as the history of humankind. The Gilgamesh Epic, known as the first written literary work, features the search for immortality on one hand, and the experiment of humankind with strength on the other. This epic, written on tablets about five thousand years ago, mythologises the events that had occurred in the region of Mesopotamia.
The events in question took place in Uruk, a city located between today's Baghdad and Basra. According to the epic, the people of Uruk complained about King Gilgamesh who had oppressed them. It was told that an equal of Gilgamesh, one mighty in strength to ward him off, must come up. In the epic, this solution is expressed as “let them [Enkidu and Gilgamesh] vie (compete) with each other, so Uruk may be rested!”1
Finally, someone named Enkidu, who was as strong as Gilgamesh and thus would balance his power, was created. However, after a while, Enkidu began to act in concert with Gilgamesh. Thus, the attempt to establish a system of checks and balances among state powers in a modern sense failed.2
The quest for checks and balances of power in order to protect fundamental rights and freedoms has also continued after Gilgamesh. This is also a quest to secure the rights and freedoms of people living as a society.
The constitutional justice has emerged as the product of this quest. Today, in almost all democratic countries, there are supreme courts that review, and where necessary overrule, legislative and executive acts in order to protect fundamental rights and freedoms.
Essentially, protecting fundamental rights and freedoms by ensuring security is the raison d’ĕtre of the State as a whole. As a matter of fact, the famous speech of Sultan Abdulaziz, dated 10 May 1868, begins with the expression of this truth. The first sentence of this speech, which is considered as the founding document of today's Court of Cassation and the Council of State, states that “the duty of the Government is to safeguard the rights and liberties of its people under any circumstances”.3
In the same speech, Sultan Abdülaziz gave the signs of the idea of separation of powers between the legislature, the executive and the judiciary by expressing “the judiciary and legislature must be independent from any interference by the executive”.4 Today's constitutional courts have been established in pursuance of the separation of powers, which has become an essential element of constitutional democracies.
Another reflection of the separation of powers can be seen in the relationship between security and freedom. Security is a prerequisite to ensure the existence of individuals and society in peace. Rights and freedoms cannot be enjoyed where there is no security. In this sense, one of the fundamental duties incumbent on the State and especially on the executive power is to ensure security.
Besides, security is not a matter of result, but of means. It is the means for a freer, more equitable and just social order. Examination and assessment of the alleged violations of fundamental rights and freedoms while ensuring security are among the primary duties of the judiciary, especially the constitutional courts. Accordingly, we have to admit that there is a delicate relationship between freedom and security, as well as that none of them can be disregarded for the sake of the other.
It is undoubtedly the law that will ensure the co-existence of the values of security and freedom and put them into practice in daily life. Accordingly, the law is a condition for the existence of these values, not their opponent. Without law, there can be neither security nor freedom.
A state where fundamental rights and freedoms are protected and those exercising public power are bound by the law is the state of law. The Constitutional Court’s duty is to contribute to the functioning of the democratic state of law with all its rules and institutions, as guaranteed in Article 2 of the Constitution.
As a matter of fact, the protection of fundamental rights and freedoms is the common goal of the legislature, the executive and the judiciary. For this reason, it is incumbent on the state organs to carry the democratic state of law into the future on the basis of security, freedom and justice within the framework of cooperation and division of functions as indicated in the Preamble of the Constitution.
Individual application mechanism that was put into practice eight years ago today has brought the Constitutional Court's duty to protect fundamental rights and freedoms to the forefront. The Court has set the standards regarding the constitutional rights and freedoms within the scope of individual application, including but not limited to the rights to life, to hold meetings and demonstration marches, to the right to a fair trial, and the freedom of expression.
With the individual application mechanism, a novel and effective legal remedy has been provided for the individuals whose rights have been violated to apply after exhaustion of the ordinary legal remedies. Another aim of the individual application mechanism is to ensure that alleged violations of rights be examined within the country without being brought before international judicial tribunals. I would like to express with pleasure that after the eight-years of experience, this aim has been achieved to a great extent.
Despite the increasing workload and unfavourable circumstances, the Constitutional Court has maintained the effectiveness of the individual application mechanism. Taking this opportunity, I would like to extend my appreciation to the Court’s deputy-presidents, justices, rapporteurs and staff who work devotedly.
At this point, I would like to share some statistics with you. The Court has received a total of approximately 285,000 applications since 23 September 2012, and nearly 243,000 of them have been concluded. In other words, since the introduction of the individual application mechanism, 85.5 percent of the applications lodged before the Court has been adjudicated.
Currently, around 42,000 applications are pending before the Constitutional Court. In over ten thousand cases it has dealt with, the Court has issued violation judgments. Given the distribution of the violation judgments based on fundamental rights and freedoms, it appears that the top three are the right to a fair trial (54%), the right to property (26.7%) and the freedom of expression (5.7%).
As can be seen from these data, complaints regarding the freedom of expression occupy an important place among the applications in which the Constitutional Court has found violations. Since one of the topics of today's Symposium is the internet and freedom of expression, I would like to dwell on that briefly.
Humans are creatures who think and express what they think. In this sense, hindrance to expression means denying the basic characteristic of human being.
Freedom of thought and expression has been the constant issue of social, political and legal debates in these lands. The late Cemil Meriç made a big emphasis on this issue. When he was reminded, during an interview, of his famous expression regarding that we live in a country where thought is despised, he said “Yes. The worst characteristic we have is our inability to be lenient.”5
The word leniency (müsamaha) used by Cemil Meriç is much more comprehensive than the word "tolerance". Given its etymological origin, “müsamaha” means overlooking, condoning, giving generously and forgiving. In this sense, indulging different thoughts necessitates being generous and forgiving to ideas and thoughts.
As a matter of fact, we do not have to agree with what is said, but we have to tolerate it. We may not find pleasant what is said, but we have to condone and tolerate generously the person saying it.
The scope of freedom of expression is broad. Especially, what is essential in that regard is that freedom should be the standard, and limitation is the exception. In this context, as a rule, any expression other than incitement to violence and terrorism, hate speech, threat and insult should be protected by the legal order.
Here, it is necessary to mention, briefly, that terrorism is one of the main reasons for restricting freedom of expression. As we all know, terrorism is one of the greatest threats to freedom of expression. As a matter of fact, the aim of terrorism is to paralyze the democratic state of law where fundamental rights and freedoms are guaranteed.
In this sense, the fight against crimes and terrorism is not only necessary for ensuring security that is essential for individual and social life, but also for protecting all fundamental rights and freedoms, especially the right to life and freedom of expression.
However, it is also a constitutional obligation to maintain this fight within the boundaries of law. Reviewing the lawfulness of such processes is incumbent on the judiciary, especially the constitutional courts.
In the history of the fight against terrorism, there is a trap that democratic states may sometimes fall into. It may have been said sometimes of the necessity to put the law aside or on hold to fight terrorism. In fact, this is exactly what terrorists seek. It is known that an understanding and practice that considers the law as a hindrance may overshadow the legitimate fight and thus result in heavy costs in the long run.
These principles have become much more important in the internet age we live in. As is known, the internet, which has caused radical changes in both individual and social life, entails both opportunities and risks in terms of fundamental rights and freedoms.
Thanks to the internet, we no longer have to wait for the evening news bulletins or the next day's newspapers to find out what is going on. Likewise, we do not need to be a columnist in a newspaper to share our thoughts. The internet provides an easy, cheap and accessible platform for everyone to express their opinions.
The internet also plays an important role in the political field. Heads of state convey their most important messages through social media, and phrases such as "tweetocracy" have been created to express the emerging governance models.
Despite the convenience it provides, internet may give rise to the commission of offences such as terrorist acts, gambling and child abuse, as well as to the breach of several fundamental rights and freedoms notably the right to respect for private life.
Therefore, individuals’ rights and freedoms may conflict with each other. Notably a conflict may occur between the freedom of expression and the right to respect for honour and reputation. In the view of the Court, “In case of any conflict between fundamental rights and freedoms, one of these rights and freedoms should not be allowed to override the other one, but rather a reasonable balance should be struck between them and both should be afforded the necessary protection”.6
This multi-faceted aspect of internet –entailing both opportunities and serious risks– renders inevitable its arrangement in legal terms on the one hand, and makes this arrangement difficult due to its unrestrainable nature on the other.
In cases brought before it through the constitutionality review and individual application, the Court examines the alleged restrictions of the fundamental rights and freedoms relating to the internet on the basis of the criteria laid down in Article 13 of the Constitution.
In the constitutionality review, it is primarily ascertained whether such restrictions have a clear, precise and foreseeable legal basis. The Court has rendered several violation judgments as the legality requirement was not satisfied. If this requirement has been satisfied, it is then discussed whether the impugned restriction pursues a legitimate aim of protecting the rights and freedoms of others.
If the criterion of a legitimate aim has also been satisfied, the criterion of the necessity in a democratic society will be assessed. In this sense, the restriction must meet “a pressing social need”. It is ultimately examined whether the impugned restriction complies with the principle of proportionality consisting of the sub-principles of appropriateness, necessity and commensurateness. A restriction which is not appropriate or necessary for, or commensurate to the pursued aim constitutes a breach of the principle of proportionality.
In cases where the Court finds a contradiction with any of these requirements laid down in Article 13 of the Constitution, it annuls the contested provision in the constitutionality review process, or renders a violation judgment in the individual application.
It goes without saying that a place without freedom of expression is devoid of also democracy. Freedom of expression is mainly the freedom to criticise. In this sense, criticism is the distinctive feature of democracy.
The history of humanity also demonstrates that the attempts to prevent criticism are futile. This is well defined by Socrates who was sentenced to death for his thoughts perceived as ill-advised and corrupting the youth. Once his sentence was pronounced, he said: “Rather than silencing others, the most honourable way is striving to make oneself most perfect.”7
Socrates’ warning is applicable also to the judicial bodies. As I have previously noted several times, criticisms directed towards judicial decisions also fall under the sphere of the freedom of expression. Judicial decisions, notably those rendered by the Court, are not sacred texts. They may be, and indeed ought to be, subject to criticism, which is mostly to the advantage of the judicial body the decisions of which have been criticised. To that end, the Court has been, for years, holding symposia whereby its decisions and judgments are discussed and criticised and has compiled the presentations delivered during these events in its journal of Constitutional Justice (“Anayasa Yargısı”). Accordingly, the symposium held today is also intended for receiving the participants’ feedback on the Court’s decisions and judgments.
However, I consider that in order for the criticisms directed towards judicial decisions to be useful, at least the following two considerations are of importance.
First, before directing a criticism against any form of text, it should be read thoroughly and comprehended. It is also the same for the judicial decisions. Criticisms made on the basis of presumptions even before the publication of the reasoning of a given judgment, or after its publication but without being read, lead to misinformation and misguidance. In consideration of certain criticisms against the Court’s decisions and judgments, we have observed that they are criticised without being read, or sometimes without being sufficiently comprehended. However, a sound criticism entails reading as well as an accurate understanding of the contents read. Otherwise, expressions which are not indeed considered in the judgment may be reflected as if they were stated.
Second, the effectiveness and usefulness of the criticism for those criticised largely depends on the tone used. “How” you express is generally more important than “what” you express. Undoubtedly, the tone or style used is also under the protection of the freedom of expression. Everyone is, of course, free to use the tone of his own choice. However, it is clear that commentary directed at those rendering the judgment but not at the judgment itself and going beyond criticism would be of no avail as it would detract from the aim underlying the criticism.
As a matter of fact, the language we use is the reflection of our identity and personality. Mevlana says in the Masnavi:
“Man is concealed underneath his tongue: the tongue is the curtain over the gate of the soul. When a gust of wind has flinged the curtain, the secret of the house is revealed to us.”8
I would like to also stress that all these remarks as to the criticism and the way it is made primarily and especially cover the expressions, posts, language used on the internet.
In conclusion, the Court strives for maintaining the democratic state governed by rule of law, a characteristic of the Turkish Republic, which safeguards the fundamental rights and freedoms, within the boundaries of the duties and powers conferred upon it by the Constitution and laws. It endeavours to perform this duty in the best possible way.
I would like to take this opportunity to issue a call to the public. If you wish to make any contribution to the Constitutional Court, I kindly invite you to criticise its decisions and judgments. We actually value and consider such criticisms.
I wish you all a very successful and fruitful symposium. I would like to express my gratitude to the judges, the academicians and all participants for their outstanding contribution.
In the hope of convening at further meetings where the Court’s decisions and judgments are discussed, I wish you all health and welfare.
|Prof. Dr. Zühtü ARSLAN
|President of the Constitutional Court Türkiye
1 The Epic of Gilgamesh, trans. A. George, (London: Penguin Books, 1999), p. 5.
2 Daron Acemoglu and James A. Robinson, The Narrow Corridor: States, Societies, and the Fate of Liberty, (New York: Penguin Press, 2019), p. xiv.
3 Tasviri Efkâr, No. 584, 18 Muharram 1285 (1868).
5 Türkiye Kültür ve Sanat Yıllığı 1986, intvw. Hüsamettin Aslan, (Ankara: Türkiye Yazarlar Birliği Yayınları), pp. 586-594.
6 The Constitutional Court’s Judgment, E. 2014/101, K.2017/142, 28 September 2017, § 49.
7 Platon, Socrates’ Defence, trans. A. Çokona, 22nd Edition (İstanbul: İş Bankası Yayınları, 2020), p. 60.
8 Mevlânâ Celâleddin-i Rûmî, Mesnevî-i Ma’nevî, İkinci Defter, 842-843, trans. D. Örs and H. Kırlangıç, (İstanbul: Türkiye Yazma Eserler Kurumu Yayınları, 2015), p. 206.