The 3rd Summer School on “Freedom of Expression and Freedom of Association”
25 August 2015, Ankara
Distinguished Guests, Justices, and Rapporteurs,
I would like to welcome you to the 3rd Summer School of the Association of Asian Constitutional Courts and Equivalent Institutions.
Rather than delivering a formal opening speech, I want to share my opinions with you on the general aspects of the freedom of expression along with relevant case-law of the European Court of Human Rights and the Turkish Constitutional Court.
This year, fourteen countries including Turkey are taking part in the Summer School. On behalf of myself and the Court, I would like to thank the esteemed delegates of the participating countries. In fact, this summer school has started two years ago, and at the very beginning we had participants from nine countries. Last year in 2014 the number of countries participating in the school increased to ten, and fourteen countries are participating in this summer school. Please let me mention these countries one by one: Azerbaijan, Algeria, Indonesia, Spain, Montenegro, Kyrgyz Republic, South Korea, Malaysia, Mongolia, Uzbekistan, Russia, Tajikistan, Thailand, and Turkey.
Twenty three representatives from these countries will exchange opinions on freedom of expression and share the experiences of their countries. As a matter of fact, the first aim of this summer school is to enhance the existing ties and cooperation among the members of the Association. Its second aim is to facilitate exchange of valuable experiences of both member and non-member countries. We heard from our colleagues at the Board of Members Meeting of AACC in Jakarta two weeks ago that the summer school was very fruitful project that contributes to realize the goals of the AACC. We are proud to host and organize the Summer School and contribute to the AACC.
The main theme of the summer school of this year is freedom of expression. Freedom of expression holds a primary place among the fundamental rights and freedoms. However, a few questions arise at this point; first, why do we have or must have freedom of expression, and second, why freedom of expression has a privileged place among other freedoms. A particular importance is attached to freedom of expression in both international human rights treaties and national constitutions.
In fact, there has been an effort to respond to these questions by competent sources, and the answer has been sought mainly on two levels. The first one is the idea that freedom of expression is an aim, a value in itself, and that we have freedom of expression since it is an extremely important element of our existence. And the other one is that freedom of expression is valuable in instrumental terms. It is in fact a key for many other values. The instrumental approach is that freedom of expression is necessary to attain many values.
I will touch briefly on the details of these two approaches and then I will explain within this theoretical framework how the European Court of Human Rights and the Turkish Constitutional Court approach this freedom on a philosophical basis. That is, I will mention how they determine the fundamental parameters of this freedom and what kind of an approach they adopt on concrete cases. The freedom of expression, whether defined as a value or aim by itself or not only as an instrument but also as an aim, is a reflection of freedom of thought, which is an aim by itself because it is the thought that represents the real value.
Since thought is a fundamental element of human existence, explanation of that thought is accepted as a value in itself. One of the most well-known expressions in this regard is uttered by Descartes: “I think, therefore I am” is formulated again as an element of certainty. That is, he says “it is obvious that I undoubtedly exist because I think; since I think, I exist”. Of course, this idea is not the result of only western philosophy. Mevlana Celaleddin-i Rumi, who had lived on these lands hundreds of years before Descartes, also stated that “thought lies at the foundation of existence”. Mevlana says that “human being is made up of thought. The rest is flesh and bone”.
This is an expression which is usually heard but not deeply contemplated. Thought lies at the foundation of human existence. Of course, thought does not make any sense if it only lies within the human mind. What really matters is to be able to reflect this thought and express it. Again, Mevlana defines freedom of expression in an almost absolute manner. He says “if you are not a slave, address as a sultan, express your opinions in whatever way you like”.
Having explained the purposive aspect of freedom of expression, we can now turn to its instrumental aspect. What does freedom of expression mean for us in instrumental terms? First of all, freedom of expression is one of the indispensable elements of democratic society, as expressed in the judgments rendered by the European Court of Human Rights and the Turkish Constitutional Court. So, why is that so? That is because it is of vital value in accommodating the differences. It is a very general fact that society is diverse. Society is a whole composed of different elements; world views, life styles, and ideologies contradicting one another, different from one another, and incompatible with one another. The biggest challenge faced by modern democracy is to facilitate co-existence of these differences. Successful democracies are the ones that can accommodate the differences in the best way.
Diversity is not something to be praised or condemned; it is a fact. Diversity is a part of life, it is a fact that we have to accept and manage. Diversity is a source of richness but realistically speaking, sometimes differences could be a source of conflict and some unrest as well. Therefore, diversity is a fact to be managed irrelevant of the assessment whether it is good or bad.
The essence of managing diversity is managing the relations with others; the source of diversity is the difference between the majority and others. So, who is the other? Or, what is the other? This is an important concept discussed in political philosophy or in philosophy in broader terms. It is simply one of the magical concepts, if you will, in the postmodern thought. I define the other as an entity both inside and outside us. The other is outside us, the other is the one not thinking in the same way as we do, it is the one different from us, the one living differently from us. Marginalization is excluding the different ones from our world or sentencing or suppressing them. On the other hand, the other is inside us because we are also the other in relation to the ones we define as others. We are the other in the eyes of the person whom we have marginalized. That is why each of us has the other figure inside ourselves. So, such a situation arises as to how we shall determine our relationship with the other. That is where freedom of expression comes into play.
Freedom of expression is in fact the freedom of the other having a place inside and outside us. It is actually freedom of all individuals; my freedom and the others’ freedom. Thus, not silencing the others is the most important element of freedom of expression. Lyotard, one of the eponyms of postmodern thought, formulates it very well: “the awfulness of the death penalty is not the death or killing of the person”. When the person is condemned to death, s/he loses her/ his life which is one of his/ her most precious assets. But what is of primary importance, he says, is that the person is deprived of his/ her right to call out to others; that is, the right to express oneself is terminated. Once you kill the person, you eradicate the opportunity for the person to call out to others and to express herself/ himself. For Lyotard, this is the greatest harm; thus, censoring the society, silencing the society and coming up with the project of a silent society are attacks aimed not only against the human spirit but also against the foundations of democratic society. So, we can conclude that freedom of expression is, in instrumental terms, the most important instrument for us to live in peace with the other, to live in a tranquil manner with our differences. Therefore, freedom of expression is valuable and has a primary and special place among the other freedoms.
Freedom of expression has derivations. There are some other freedoms which are in an organic relationship with freedom of expression. Freedom of organization, freedom of assembly, freedom of demonstration, freedom of association, freedom of information are among such freedoms implying different dimensions of freedom of expression but formulated today as independent rights. Hence, without freedom of expression, it is not possible to mention of a democratic society where diversity can coexist.
Dear Guests, Ladies and Gentlemen,
The European Court of Human Rights has been emphasizing the importance of free speech for 40 years. Beginning with the precedent dated 1976, it has been stating on every occasion that freedom of expression is the sine qua non of democratic society, and that this freedom applies not only to the views that are not hurtful or in favour but also to the contrary opinions that are disturbing and shocking to a segment of the society or to the State. By doing so, the Court lays the foundation for a healthy relationship with the other.
The European Court of Human Rights and the Turkish Constitutional Court have the same aim when the three elements of democratic society are considered. Three concepts, pluralism, tolerance and open-mindedness, are emphasized almost in every judgment. They are at least underlined in the judgments on freedom of expression rendered by both the European Court of Human Rights and the Turkish Constitutional Court. The aim of these three concepts is to ensure the management of diversity in a peaceful way.
Pluralism is a concept aimed at co-existence of differences. Likewise, tolerance is implying that people who think differently in the society shall stand one another. Tolerance implies a hierarchy. In a way, the one who tolerates stands at a higher level and is aware of the truth, while the thoughts of the one tolerated is at the lower level. This is so because everybody holding certain belief, thought or ideology considers it as the truth, and they tolerate others who do not share same thoughts. Therefore, hierarchy is an understandable metaphor concerning the tolerance among the members of the society. However, on the political level, it is a dangerous concept considering with respect to the relationship between the State and the individual or between the State and civil society. There should be no hierarchical relationship between the State and the individual, and the State should not be in a position tolerating thoughts or worldviews of the individual. Accordingly, the relationship between the State and the individual must be defined by the concept of recognition rather than tolerance. That is, the State, taking up an equal position before all ideologies and world views, is in the position and liable to provide them all with the opportunity to express themselves all together on the condition that they do not resort to violence.
Certainly, everybody can claim that her/his thought is right. Yet, s/he has to show respect for another person’s right to claim the same thing. And, dear guests, fanaticism is not peculiar to a certain belief or ideology. There might be fanatics in every ideology, every religion, and every belief. In this regard, those groups having fanatic elements should work toward smoothing such thoughts. Thus, pluralism, tolerance and open-mindedness appear before us as the sine qua non elements of the democratic society.
Now, I would like to say a few words regarding how the Turkish Constitutional Court approaches towards freedom of expression in general. In the individual application, the Court so far has rendered 18 judgments of violation on freedom of expression within the standards set by the European Court of Human Right, in such a way as to enrich those standards. However, it would be wrong to limit the Court’s approach towards freedom of expression to the individual application. The Court also rendered judgments within the constitutional review which may be defined as rights-based judgments regarding freedom of expression, emphasizing the freedom of expression as an indispensable element of democratic society.
In general, the Turkish Constitutional Court applies a three-prong test as the European Court of Human Rights does. While assessing whether an interference with freedom of expression exists, the Court applies the test of legality at the first stage because, in accordance with Article 13 of the Constitution, restriction of fundamental rights should be solely prescribed by law. There are two dimensions of this requirement. First, the law does not imply the body of legal rules but specifically a legislative rule. In other words, the Court, rather in a narrow way, interprets this requirement as the law enacted by the Parliament. In contrast, the European Court of Human Rights interprets it in a broader sense to cover regulations and the case. The second dimension is that it does not suffice that the law exists but it should be explicit and foreseeable. Unless it has these features, the interference or the rule as the basis for the interference can be considered to constitute a violation of freedom of expression.
The Turkish Constitutional Court found a violation of freedom of expression on the basis of legality in the cases of Twitter and Youtube. In the first one, the Court held that the law did not vest the administration with the power to block access completely, hence, it found a violation of freedom of expression in respect of the legality requirement. In the second one, determining that the law was not sufficiently explicit and foreseeable, it found a violation of freedom of expression on the basis of quality of the law.
It should be also mentioned that the Turkish Constitutional Court, in parallel with the European Court of Human Rights, sets broad limits for the criticisms directed at politicians and the persons exercising public authority. In other words, patience and tolerance of politicians and public officials should be broader compared to those of ordinary citizens not having a political responsibility or not in the position to exercise public authority. In this context, the Constitutional Court regarded the conviction of a columnist having criticized the members of Parliament as an extreme interference with freedom of expression. Likewise, the Court regarded the compensation award against a scientist who had questioned the quality of drinking water and criticizing the metropolitan municipality mayor as an extreme interference.
The second prong of the test is whether the interference is based on a legitimate aim or not. This prong is satisfied if the interference is made for legitimate aims such as protection of the public order, the national security, the rights and liberty of others, and prevention of crime as enumerated in the Constitution. The third prong relates to the question of whether or not it is necessary and proportionate in a democratic society within the scope of Article 13. In this assessment, the Constitutional Court defines the concept of democratic society in a broad and libertarian sense. In line with the case-law of the European Court of Human Rights, the Court considers whether there is a pressing social need to limit the right to freedom of expression in a particular case and whether the restriction is reasonable (proportionate to the legitimate aim). If the limitation is unreasonable, it constitutes a violation of the freedom of expression.
In addition, unlike the European Convention on Human Rights, the Turkish Constitution includes the criterion of “untouchable core of a right”. At the third prong, the Turkish Constitutional Court preliminarily applies this criterion. The Court evaluates whether the interference renders a right non-exercisable or whether it touches the essence of that right. If there is an interference with the core or essence of the right, a violation is found without resorting to questions whether or not it is necessary and proportionate in the democratic society. However, the Court usually finds a violation of freedom of expression at the third prong on the basis of not being necessary and proportionate in the democratic society.
Before concluding my speech, I must also note that freedom of expression is not full of roses, there exists certain problems concerning its limits and its interaction with other freedoms. It is well known that protection of personal rights of others, hate speeches, libel, and the propaganda of terrorism constitute the conventional limits of freedom of expression. However, the internet phenomenon poses novel questions with respect to freedom of expression. We encounter complex issues here because internet is not controllable or it simply has no limits. Just like diversity, this aspect of internet is a fact regardless of the question whether good or bad.
In addition to new challenges, internet has introduced new dimensions into the realm of freedom of expression. For instance, the right to be forgotten has took place in literature. Google scans news and posts information about individuals upon search. This information may not always reflect the truth, and when others search about this individual online, even years and years later, let’s say the grandchildren of a person, they are exposed to unverified or unreliable information. If this person goes to court and proves that this information is false, the court may order or should be able to remove this content from internet. Here the issue arises whether such content should be removed or not.
Another point is that whether internet portals may be held responsible for online comments of users. Some expressions which constitute libel or hate speech may be stated in comments on a website, on a news site for example. And the question is whether only the ones making the comments are liable for them. However, the fact that most of those comments are anonymous makes it more complex. Who is liable in this case? The one making the comment, the one allowing that comment to be made, the ones having set up that portal or the ones operating that portal?
The European Court of Human Rights has recently rendered a judgment on this issue. The judgment of 16 June 2015 rendered by the European Court of Human Rights, Delfi AS v Estonia, is very interesting in this regard. In case of conflict between freedom of expression and personality rights, the Court seems to be deciding in favour of the latter. In this case, comments including criticisms, harsh expressions and even expressions of hatred have been directed against a columnist working for the news portal called “Delfi”. The mentioned portal does not remove these comments automatically. It removes them only after a complaint is made. The European Court of Human Rights agrees on the opinion held by the Estonian courts that these comments that were available on the portal for one month are in breach of personal rights. This judgment is really interesting and it will be subject to intense discussions in coming days.
I would like to end my speech by wishing you all a successful and fruitful summer school program. Thanking the participants from abroad for their participation, I would like to express that we are glad to see them here among us. I also would like to thank academicians who will lecture at the summer school and the Rapporteur Judges who will deliver presentations.
I express my gratitude on behalf of myself and the Turkish Constitutional Court to all our colleagues putting effort into the organization of this event.
I wish you all healthy, peaceful and good days.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Türkiye|