Events
The applicant, who is a lawyer, participated in the hearing as a defendant in a case heard in the High Criminal Court (Court) on the date of the events. The court imposed a judicial fine on the applicant for insulting the officer in charge of his position due to his remarks to the Public prosecutor during the defence. The applicant’s application for this punishment was examined by the Constitutional Court and it was concluded that his freedom of expression had been violated.
On the same day, the Court also notified the President of the Istanbul Bar Association and the President of the Turkish Bar Association about the applicant’s disciplinary discretion and performance. The Disciplinary Committee of the Istanbul Bar Association, which examines the statements contained in the Minutes of the hearing, has established Article 135 of the Law No. 1136 on the applicant. on the basis of paragraph (1) of its article, it imposed a warning penalty. The appeal made by the applicant against this decision was rejected by the decision of the Disciplinary Committee of the Turkish Bar Association. The case filed by the applicant requesting the cancellation of the aforementioned decision was dismissed by the decision of the Administrative Court. Upon the applicant’s appeal, the decision was upheld by the Regional Administrative Court.
Claims
The applicant claimed that his freedom of expression had been violated due to the fact that he had been punished with disciplinary action for his words used during the hearing.
Evaluation of the Court
The fact that those who choose the profession of lawyer diligently fulfill the requirements of their duties in accordance with the name of lawyer is one of the main conditions for maintaining and strengthening respect and trust that cannot be considered separate from the title of lawyer.
Lawyers have the right to criticize the functioning of the judiciary, provided that they do not exceed certain limits. These limits are necessary to protect judges and prosecutors who are public officials serving for the proper functioning of the judicial system, as well as other public officials, including members of the supreme court.
There is no doubt that lawyers should take advantage of all the means of claim and defense provided for by the legal order in order to perform their duties freely and with due respect. This right is not unlimited, although it is a requirement of defense immunity, which is a reflection of the independence of lawyers. Lawyers should act in accordance with professional rules when exercising this right, pay attention to the fact that the words and expressions they use against other actors of the judiciary are related to the subject 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 subjects of the hearing should show maximum care and kindness towards each other, and comply with the rules and requirements imposed on them by their profession. In this context, lawyers should also take maximum care to ensure that the hearing can be conducted in a healthy manner, be polite and discreet; act in a manner appropriate to the reputation and dignity of their profession, befitting the respect required by their title.
In the concrete case, there is a discussion about the content of the words said by the applicant during the defense against the opinion of the Public prosecutor. According to the Minutes of the hearing, the applicant was asked to “Have the prosecutor re-read the law school, either he did not read the law school, or he did not read the file. it has been accepted that he made promises in the form of “. However, the applicant did not accept the Hearing Minutes and said, “I graduated from Istanbul Law School, I do not know which faculty the prosecutor graduated from, we were not taught that way. he has suggested that he said the words “.
It is clear that the words used did not make a positive contribution to the clarification of the case in question and the establishment of justice. It is seen that the expressions used are expressions that exceed the limits of respect and courtesy, that are aimed at offending the Public prosecutor who explains his opinion rather than performing his defense duty, and that are detrimental to the ethical rules and dignity of the legal profession.
Lawyers can freely explain the merits of the trial in order to properly perform their duties. Questioning the competence of any of the judicial subjects is not related to the merits of the proceedings, but also casts a shadow on the dignity of the judicial environment.
After explaining why it respected the Hearing Minutes, the contents of which were not accepted by the applicant, referring to the Professional Rules of the Turkish Bar Association, the administrative court concluded that there was no violation of the law in the decision of the Disciplinary Committee of the Istanbul Bar Association, referring to the grounds of the High Criminal Court that conducted the criminal trial in relation to the words subject to the complaint.
Considering all the evaluations and the shares of appreciation that judicial authorities have when balancing different interests, it was assessed that the state did not act contrary to the positive obligations of the applicant in the context of freedom of expression in the concrete case.
The Constitutional Court has decided that the claim on the violation of freedom of expression on the grounds described is inadmissible.