Press Release No: Individual Application 57/23

Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to the Disciplinary Punishment Imposed for the Expressions Used in the Petition of Complaint

On 8 June 2023, the Second Section of the Constitutional Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution in the individual application lodged by Nesrin Çetinkaya and Serhat Çetinkaya (no. 2019/8563).

The Facts

The applicants, who are lawyers, submitted a complaint to the Turkish Medical Association (TMA), arguing that the doctor who medically examined their client, allegedly battered by police officers, issued a false medical report. In their petition of complaint, the applicants stated, by referring to the doctor, “The cooperation between the police and a doctor who has adopted a habit of exploiting his profession for subjective reasons, which is exactly the case experienced by our client as it happened in the case cited as an example, cannot be and is not a coincidence.” At the end of the disciplinary investigation launched upon the complaint filed by the doctor against the applicants for the expressions they had uttered against the former in their petition, the Eskişehir Disciplinary Board issued a warning to the applicants, which was subsequently challenged by the latter. The Disciplinary Board of the Union of Turkish Bar Associations revoked the said punishment and held that there was no ground justifying the imposition of a disciplinary punishment. The Ministry of Justice remitted the relevant decision for reconsideration, and the Disciplinary Board of the Union of Turkish Bar Associations upheld the decision of the Eskişehir Disciplinary Board issuing the warning. The actions brought by the applicants for the annulment of the decision were rejected by the administrative court. The applicants’ subsequent appeal was dismissed with final effect by the regional court of appeal on the grounds that the said decisions complied with the law.

The Applicants’ Allegations

The applicants claimed that their freedom of expression had been violated due to the issuance of a warning as a disciplinary punishment for their expressions used in the petition of complaint they had submitted to the TMA against a doctor.

The Court’s Assessment

The applicants stated in their petition of complaint, which they submitted to the relevant professional chamber, that the doctor failed to act in accordance with the ethical principles inherent in his profession, that he did not approach their client impartially, that the report he had drafted did not reflect the truth and that he took sides with the police, which was quite apparent from the doctor’s words directed towards their client. In this sense, it must be accepted that the applicants’ expressions constitute a value judgment supported by sufficient facts in a specific context in order to voice a harsh criticism of the attitude, behaviours and words of the doctor.

Undoubtedly, public officials need public confidence  in order to duly perform their duties. For this reason, it is incumbent on the State to ensure the protection of a public official against potential attacks and unfounded charges that may prevent her/him from performing her/his duties. Besides, it should be noted that the limits of permissible criticism directed at public officials in their relations with private individuals in the performance of their duties are broader than those of ordinary citizens. As a matter of fact, it has been observed that the disputed expressions of the applicants constituted criticisms confined to the behaviours of the doctor that he had displayed in the performance of his duty.

Moreover, the impugned expressions were used in a petition of complaint submitted to a professional chamber. In addition, the applicants submitted the relevant petition on behalf of their clients, which fell under the scope of their duties as defence lawyers. In this regard, it should be noted that the statements uttered by the applicants were part of the arguments they put forward to protect their client’s interests. Indeed, it should be acknowledged that the impugned expressions concerned the dispute and served an arguable purpose in the light of the circumstances surrounding the case. According to the Constitutional Court, these expressions cannot be considered as amounting to an arbitrary personal attack. It should also be remembered that the concept of freedom of expression must be interpreted in a more qualified context for those practicing the profession of lawyer. Bearing in mind that restrictions may be allowed only in very exceptional circumstances in terms of the discussions on the matters related to the public interest, including the administration of justice, the applicant lawyers may reasonably use exaggerated expressions to a certain extent.

In addition, a disciplinary punishment imposed on the grounds that it would be more reasonable to use other expressions in a petition of complaint drafted within the scope of the right to defence, rather than expressions closely related to the facts subjected to the proceedings, would have a chilling effect on the applicants while defending the interests of their clients.

As a result, it has been considered that the inferior courts failed to analyse the impugned expressions in the specific context they had been uttered, that the expression “exploit one’s profession” was taken out of the context and considered defamatory, and that a fair balance has not been struck between the applicants’ freedom of expression and the protection of the ethical principles of the legal profession and the right to protect the doctor’s honour and dignity. It has been concluded that the interference with the applicants’ freedom of expression did not have a legal basis supported by relevant and sufficient grounds.

Consequently, the Court has found a violation of the freedom of expression.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.