Events
The applicant who is a lawyer, according to the minutes of the hearing of his case mudafilig the five defendants, mainly to the public prosecutor after the completion of opinions about “opinions we demand against time to prepare our defenses, but I don’t accept the opinions of the prosecutor law school re-read read law school, or read the file, or the court can’t be or doesn’t rank in their estimation based on the work of previous evacuation our demands again, I would like to request my client’s parole, [S.Y.n] the declaration must be evaluated, besides, [P.Y. in the file on <url>, you can ask about the action taken on this issue, if the actions taken at the court stage have no value, then what is the point of doing them? I request that the court evaluate and make a decision accordingly by taking the transactions made in court into consideration. he has made promises in the form of “.
The Court decided to notify the Istanbul Chief Public Prosecutor’s Office for the appreciation and performance of the applicant’s words to the Public prosecutor for insulting the officer in charge of his duty, targeting terrorist organizations and influencing a fair trial, and the criminal complaint was filed.
On the day of the hearing, in the minutes kept by some lawyers who defended other defendants in the same case, the applicant was told: “Let the prosecutor re-read the Law School, he did not read the Law School.“it was stated that he did not make a statement in the form of,”… he graduated from Istanbul Law School, the prosecutor does not know which faculty he graduated from …”. The applicant also appealed the minutes on the same grounds on the next day of the hearing.
After the necessary procedures were completed to prosecute the applicant, an indictment was issued by the Beyoğlu Public Prosecutor’s Office with the request that the applicant be punished for defamation.
As a result of the trial, it was accepted that the applicant had insulted the public servant for his duty with the words “…Let the prosecutor re-read the Law School, he did not study the Law School …”. Therefore, it was decided that the applicant should be punished with a judicial fine (6.080 TL) for 304 days, but the announcement of the verdict should be left undone. The appeal against the decision was rejected.
In accordance with the Law dated 22/7/2010 and numbered 6008, which entered into force after the date of the decision, the applicant’s defenders requested that the decision to withdraw the disclosure of the provision be reversed and the Court reversed the decision and opened the hearing.
As a result of the trial, the public prosecutor said words to the applicant personally and contradiction without any doubt that a portion of the target area, the difference between the words related to the content of the prosecution and defense that the determination is made; the law school with the actions of the people that work and have read the public prosecutor is not targeting individuals individuals that is related to the conclusion reached. Taking into account that the applicant and his defenders did not accept the application for revocation of the disclosure of the judgment on the mentioned grounds, it was decided to punish the applicant with a judicial fine of 304 days (TL 6,080). In its reasoned decision, the court also found that the environment was tense during the trial during which the words about the crime were allegedly said.
The decision was approved by the Supreme Court and finalized. The applicant’s request to apply for an appeal was rejected by the Chief Public Prosecutor’s Office of the Supreme Court.
Claims
The applicant alleges that his right to a fair trial has been violated due to the fact that the defense witnesses have not been heard, the contradictions between the minutes have not been resolved, the provisions of the law have not been implemented and the main claims have not been met in court decisions. The applicant also claimed that his freedom of expression had been violated due to the fact that his conviction had been decided due to his statements during the trial.
Evaluation Of The Court
The Constitutional Court has made the following evaluations in summary within the scope of this claim:
The applicant, who was the lawyer in the incident that was the subject of the application, was punished with a judicial fine for some of his remarks towards the Public prosecutor during the hearing. There is a dispute about the content of the lyrics. In the current application, the Constitutional Court does not feel the need to evaluate the acceptance of the courts of instance regarding the subut of the incident. Therefore, in the current application, it will only be evaluated whether the words used by the applicant, as accepted by the courts of instance, are in the protection of freedom of expression.
The words that caused the applicant to be punished were used during the execution of the lawyer’s profession at the time of the hearing. From the point of view of a concrete incident, interventions aimed at the applicant’s freedom of expression, who is a defense lawyer, may be considered necessary in very exceptional cases in a democratic society. Because the principle of equality of arms and considerations of the fairness of the trial require that the arguments be negotiated freely and decently between the parties.
The addressee of the words in the incident that is the subject of the application is not the judge of the case, but the Public prosecutor representing the prosecution. Compared to judges, public prosecutors are expected to be more tolerant in the face of criticism directed at them. For this reason, criticism of Public prosecutors, who are one of the parties to the trial during the prosecution phase, benefits from a higher level of protection in the context of freedom of expression compared to criticism of judges.
The words uttered by the applicant in the incident under consideration were said at a time when the situation was tense during the trial, as was also accepted by the court of first instance, and against the Public prosecutor’s opinion on the merits. Within the framework of these findings, it is seen that the applicant’s words are related to the opinion that he considers to be sloppy from his point of view. Although the criticisms about whether the public prosecutor has studied law school may be considered exaggerated, it is understood that the main purpose of the criticisms on this issue is to criticize the approach adopted by the Public prosecutor in the interview. The applicant expressed a value judgment against the Public prosecutor’s attitude to the case based on the findings that the Public prosecutor had not taken into account some developments at the trial stage. However, criticisms about whether the public prosecutor, who may be considered excessive by the court of first instance if he does not have a factual basis, has studied law school, all the words said by the lawyer and the subject of evaluation have been made without regard to the conditions of the hearing.
It should also be taken into account that the exposure of lawyers to criminal proceedings due to their words during the defense can have a deterrent effect on the task of fervently defending the interests of their clients. In this context, criminal investigations in the context of freedom of expression during the execution of lawyers’ professions – although the penalties are light – should only be resorted to in exceptional cases.
For these reasons, the public prosecutor during the trial the applicant’s remarks in the context of the subject will admit that personally hurt even if the event is punishable by a criminal investigation and prosecution against the applicant by means of a reduction in work interference with freedom of expression, it was decided that an intervention is not necessary in a democratic society.
The Constitutional Court found that, for the reasons described, the applicant had violated Article 26 of the Constitution. it has decided that the freedom of expression guaranteed in its article has been violated.