Events
The applicant appointed Ç.D.A. and Ü.A. (the complainants) as attorneys to represent him in the files to which he was a party and an attorney fee agreement was signed between the parties. As the applicant terminated the attorneyship relationship with a letter of dismissal, enforcement proceedings were initiated against the applicant, and upon the applicant’s objection, the complainants filed a lawsuit to the consumer court for the cancellation of the objection. The complainants filed a complaint with the Chief Public Prosecutor’s Office requesting the applicant to be punished for the offence of defamation due to the statements in the reply petition submitted by the applicant to the consumer court as the defendant, such as “…the plaintiff party, who is trying to earn the easy way by directing me to dismiss him for the services he does not currently provide, is almost carrying out a fraudulent activity rather than providing a lawyer service…”. The indictment prepared as a result of the investigation conducted by the Chief Public Prosecutor’s Office requested the applicant to be sentenced for the offence of defamation. As a result of the trial conducted by the Criminal Court of First Instance, a decision of deferral of the announcement of the verdict (HAGB) was made and the objection made by the applicant was rejected by the Heavy Penal Court.
Allegations
The applicant claimed that his freedom of expression was violated by being penalised for the words he used against the opposing party in the petition he submitted to the court as a defendant.
The Court’s Assessment
The first point to be noted in the concrete case is that the complainants, who are lawyers, were the attorneys of the applicant before the incident subject to the complaint and acted in judicial activities on behalf of the applicant. The applicant terminated the attorneyship relationship considering that his interests were directly violated due to the negligent behaviour of the complainants in these judicial activities; thereupon, he uttered the words subject to the complaint in the legal process initiated by the complainants in order to collect the attorney’s fee. There is no doubt that lawyers are public officials in terms of the performance of their profession. In this context, it should be taken into account in the analysis of the present case that public officials have to endure more criticism due to the function they perform and that the limits of criticism towards these persons are much wider.
It may be accepted that the expressions used by the applicant are hurtful expressions that cause discomfort to the addressees. However, with the words he used in his petition, the applicant essentially stated that the enforcement proceedings carried out by the complainants against him were unfair and implied that the complainants, who did not fully fulfil their duties, tried to collect an undeserved fee from him after he dismissed them. In addition, when the applicant’s defence is taken into consideration, it is understood that the words used are not in the nature of attributing a title to the complainants, but a value judgment aimed at criticising the complainants’ behaviour after the dismissal by way of analogy. Moreover, the applicant’s statements are directly related to the dispute between the parties as a whole.
For the proper administration of justice and the establishment of the authority of the judicial power, all judicial subjects are expected to act with respect and display restrained behaviour. On the other hand, the words subject to the complaint should be understood as an expression of the applicant’s anger and questioning of the legal process initiated for the collection of the attorney’s fee of the applicant, who felt that he was not represented diligently by the complainants and therefore terminated the attorney relationship. Again, the words subject to the complaint were only included in the petition and did not leave the court. Therefore, it cannot be said that the said words were used for an extrajudicial purpose beyond the resolution of the dispute or for the sole purpose of harming the complainants. Since these statements are also part of the right to a fair trial, it should be recognised that they have a more intensive protection area and it should be kept in mind that limiting them to a penalty may be necessary only in exceptional cases.
Despite the foregoing, the court of first instance convicted the applicant without discussing any issues, including the context of the statements made by the applicant about the complainants, the place where they were made, whether they were within the scope of defence immunity and whether they were relevant to the dispute, stating only that the statements constituted the offence of defamation. The court reached this conclusion without considering the manner and reason for the statements subject to the complaint, whether there was a background to the words uttered, and did not attempt to strike a balance between the applicant’s freedom of expression and the complainant’s right to protection of honour and reputation. Therefore, the grounds put forward by the court for the applicant’s conviction cannot be accepted as relevant and sufficient for the interference with the applicant’s right to freedom of expression.
The Constitutional Court decided that the right to freedom of expression was violated for the reasons explained.
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