Mustafa Erdoğan și alții împotriva Turciei

At the time of the events the first applicant Mr Mustafa Erdoğan was a professor of constitutional law at the University of Hacettepe in Ankara. The second applicant Mr Haluk Kürșad Kopuzlu was the editor of the quarterly publication Liberal Thinking and the third applicant Liberte A. Ș. was a joint-stock company and the publisher of Liberal Thinking (hereinafter: “the publishing company”). Mr Buhay Baytekin, the president of the board of members of Liberte A. Ș. at the material time, applied to the Court on behalf of the publishing company.

In 2001 an article entitled ‘Turkey’s Constitutional Court problem in the light of its decision to dissolve the Fazilet [Virtue] Party’ written by the first applicant was published in Liberal Thinking. It read as follows: “The Constitutional Court has finally delivered its judgment on the Fazilet Party at the end of a long period, which lasted more than two years, and has dissolved the party on the grounds that it had become ‘a hub of activity contrary to [the] principles of secularism’. As a result, the high court has decided that Nazlı Ilıcak and Bekir Sobacı, who were members of parliament at the date of the judgment, [should be] stripped of their parliamentary status and it has prohibited former parliamentarians Merve Kavakçı, Mehmet Sılay and Ramazan Yenidede from participating in political activities for the next five years. Only three members of the Court have dissented and I am of the opinion that their names should be mentioned: Hașim Kılıç, Sacit Adalı and Samia Akbulut. The judgment of the Constitutional Court has naturally created widespread discontent throughout the country. Apart from a few fanatical individuals in the media who have character deficiencies, everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically inappropriate. Even people whose sensitivities to democratic issues have never been that obvious have criticised the Constitutional Court about this judgment. Nevertheless, it is clear that concerns about the difficulties that the judgment might cause Turkey in its dealings with the Council of Europe and the European Union have played a great role in the emergence of this reaction. Moreover, it is commonly believed that this judgment was not the product of the free will of the Constitutional Court but that it was brought about under pressure [from] and at the suggestion of military circles. It is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the Court was put under direct pressure. The first point is important to find out the nature of the present regime in Turkey. From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the Court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices. This can be done only through analysing the judgment from a legal point of view. As a matter of fact, the reasons for judgment have not yet been published. But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public. Besides, I do not think that the reasons for judgment when they are published in a few weeks’ time will invalidate our first analysis. Our observations and information regarding the previous judicial approach of the Court demonstrate that the reasoning in the judgment will be ‘prearranged’. In other words, in the established practice of the Court the thing which is termed ‘the reasoning’ is fabricated and formulated at subsequent stages to justify the predetermined judgment [made] on the basis of prior opinions. Now we can submit our first legally relevant observations and evaluation of this judgment. 1. The Constitutional Court did the right thing by not dissolving the Fazilet Party on the grounds that ‘it was a continuation of a party’. The Court might have acted in this way for two reasons: firstly, the Court might have maintained the type of interpretation which it adopted in its previous judgments on the meaning of ‘being a continuation’ of a party. This means that a distinction was made between continuation in the sociological sense and the continuation of a political tradition, and continuation in a technical legal sense among consecutive political parties. This is an extraordinarily appropriate legal understanding. If this is the case, it means that the Constitutional Court considered that the Fazilet Party, while continuing the political line represented by Milli Nizam (national order) and the Milli Selamet Party in the sociological and political sense, was not the continuation of the Refah Party with another title. A second possibility might be the fact that the Constitutional Court adopted the view which is insistently voiced by some constitutional law experts, including the author of this article. According to this view, the Constitution stipulates that ‘a party which was dissolved cannot be re-established under another title’, but neither the Constitution nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to the Constitution. If this was the reason for which the Constitutional Court refused the Chief Public Prosecutor’s request to dissolve the Fazilet Party on the basis of it being a continuation of the Refah Party, this only demonstrates that the court did not, at least, violate the positive law in this respect. This in itself does not deserve praise, since acting to the contrary would have been openly unlawful. 2. On the other hand, the Constitutional Court’s decision to dissolve the Fazilet Party on the grounds that it had become ‘a hub of activity contrary to the principles of secularism’ is clearly contrary to the law and has no factual or legal basis. This judgment is faulty on two grounds. Firstly, the activity which is claimed to be ‘contrary to secularism’ – in fact, it is only comprised of words [and] statements – does not have such characteristics. Most of them concern expressions of concern [about] the social consequences of the lack of freedom created by the prohibition on wearing the headscarf. In other words, these statements have the nature of being demands for freedom voiced by Members of Parliament – mostly from the podium of Parliament. Criticism of a prohibition, especially if it is voiced by members of parliament, cannot be contrary to any democratic and constitutional regime. As long as it is voiced in a peaceful way, a demand for freedom cannot be contrary to the principles of secularism and democracy, even if the right or freedom which constitutes the subject of the demand has not been recognised in positive law. Besides, wearing the headscarf is not prohibited for university students in Turkish law. The prohibition on wearing the headscarf which has been implemented in Turkey in recent years is not a requirement of the current legal order, but it is a result of current power relations. In other words, the existence of this prohibition is a de facto and not a de jure phenomenon. Secondly, even if it was against the law for university students to wear the headscarf, this would not make the party whose members are criticising the prohibition and demanding its removal contrary to secularism in a democratic system. Let us leave this fact aside and let us assume that such criticism and such a demand for freedom are contrary to secularism. Even in this case, the fact that some MPs or party members are making such criticism individually does not make the party “a hub” of that activity. In fact, being the “hub” or “focus” of any kind of activity for an organisation means the following: that the activity arose from the centre of that organisation, it is directed, controlled and administered by that centre; and that the activity is performed intensively, decisively and continuously. The facts in the trial record clearly demonstrate that these criteria did not apply to the legal personality of the Fazilet Party. Apart from [the fact that it was] far from being in a position to become the “hub” of the [relevant] activity, the Fazilet Party did not become a determined follower of the issue of the headscarf ban in addition to many other issues. In fact, this party has been the most “obedient” party of the system for the last three years and did not hold a clear and decisive view on any major issue, probably because of the fear of being dissolved. It seems that the Constitutional Court considered Merve Kavakçı’s election as an MP for the Fazilet Party – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “a hub of activity contrary to the principles of secularism”. In other words, according to the Constitutional Court, the election of a citizen who wears a headscarf as an MP and her attempt to take the oath in Parliament while wearing the headscarf are contrary to secularism. This is an unsound understanding for many reasons. First of all, if “national sovereignty” is one of the true – not fake – basic principles of Turkey’s constitutional order, no constitutional organ, particularly the Constitutional Court, whose legitimate authority stems from this principle, can impose any restrictions on the nation’s right to elect its representatives. Merve Kavakçı was put forward as a candidate by the Fazilet Party, but she was elected by the Turkish nation. If the Constitutional Court had found this fact to be contrary to secularism, it would have “annulled” the nation. Secondly, there is no provision in the Constitution stipulating that a person who wears a headscarf cannot be an MP and that she cannot take the oath in Parliament in a headscarf. [Nor does] such a provision exist in Parliament’s standing orders. This can be understood from the fact that an initiative was recently launched in Parliament to add such a prohibition to its standing orders. Besides, even if there were such a provision, this would be considered null and void because it would be contrary to the Constitution. In fact, the Turkish Grand National Assembly does not have the right to act [in a way] which would bring about the abolition of the citizens’ rights to elect representatives and to be elected as representatives, which are one of [their] basic rights. Actually, since the aim of the standing orders is to ensure the conduct of Parliament’s activities in an orderly way, a right cannot be annulled with such a procedural action. 3. This judgment demonstrates that the dominant majority of the Constitutional Court continues to apply its incorrect understanding of what “secularism in a democratic system” is. Unfortunately, the High Court has interpreted secularism in many of its judgments in a totalitarian manner. According to the Court, secularism is not a pro-freedom and pro-peace principle restricting the State, but is a higher principle legitimising the imposition by the State of a certain way of life on citizens. The Constitutional Court considers secularism as the categorical refusal of the demands of religion in the social, public and political arenas. Therefore, it thinks that secularism authorises the State to remove manifestations of religion in society. Moreover, it exalts this principle to the level of being the most important value of the constitutional order. According to this understanding, democracy, the rule of law and human rights are all secondary values, which should [only] be recognised to the degree allowed by secularism. Here, the more interesting point is that the Constitutional Court insists on continuing the doctrine of “secularism as a project of social engineering”, which was developed during the authoritarian (occasionally totalitarian) one-party era, in the democratic-pluralist environment. It also stubbornly ignores the pro-freedom/democratic criticism of this notion. Despite the fact that even the Turkish literature on the subject of “secularism in a democratic system” has expanded to a considerable degree in the last ten or fifteen years, our judges in the Constitutional Court turn a blind eye to this literature. Furthermore, in this trial at least, our senior judges did not need to undertake additional efforts to obtain new sources and information on this issue. For example, there was detailed information in the defence brief on how secularism is understood and implemented in contemporary democracies, but it seems that the members of the Court did not read these passages or if they did, they ignored it. In this connection, the two judgments of the Constitutional Court which directly concerned the issue of wearing headscarves and its judgments dissolving the Refah Party and the Fazilet Party indicate that this matter has become the key focus of secularism. The conclusion which the Court has reached can be formulated as the following: “to demand the freedom of wearing the headscarf means categorically being against secularism – and indirectly against the Constitution.” This is a totally wrong idea regardless of the perspective one has: it is anti-democratic, it is anti-freedom, it is contrary to secularism and it is pro-conflict. It is anti-democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors. It is anti-freedom because it is oppressive and imposing. It is contrary to secularism because it oppresses religious choices and creates discrimination on the grounds of religion. Finally, it is pro-conflict because it forces the State to quarrel with society and in this way it allows the State to destroy the social peace and order. 4. The part of this judgment which ends the MP status of some politicians and prohibits them from involvement in further political activities does not contain valid grounds pertaining to the relevant individuals. Specifically, the application of the sanctions against Nazlı Ilıcak on the grounds that she “was one of the people who brought about the dissolution of their party with their activity contrary to secularism” bears no relation to reality and is a ridiculous assertion. The situation is really awkward. A high court imagines that it protects “secularism” by prohibiting a person from being involved in political activities and by ending the MP status of that individual, who meets the criteria of a “contemporary way of life” and “contemporary personal appearances” perfectly. Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction. This is a typical example of the attitude of the Court demonstrating the absurd results [its] formalist legal reasoning can produce. 5. All these explanations highlight that the statement of the chairman of the Constitutional Court to the effect that “there is nothing we can do, the laws force us to act in this way, if you do not want us to do so, change the laws”, has no value from a legal point of view. It is true that the Constitution and the laws in Turkey are not pro-freedom; therefore, it is, of course, necessary to improve the positive law. But the major problem in the judgment which dissolved the Fazilet Party is not the unsuitable character of the current law. The problem is that the Constitutional Court interprets the Constitution and the laws which are in force in an authoritarian and narrow-minded way. Let us leave the necessity of the Constitutional Court complying with the provisions of the European Convention on Human Rights and the Strasbourg case-law [to one side]. There are no serious grounds for dissolving the Fazilet Party, even on the basis of the Constitution and the Law on Political Parties. But there is no need [to know] the [provisions of those] laws to understand this fact. The notions which are needed are the notion of law, which does not see legitimacy as the same as the law [itself], a considerable amount of knowledge about the technique of interpretation and legal reasoning and sensitivity to freedom and democracy. In other words, our problem is the fact that most of our constitutional law judges do not know the law, and do not have knowledge of democracy, political and constitutional theory or secularism. Nor do they intend to acquire it. It is assumed that the pro-freedom and pro-democracy case-law of the European Court of Human Rights is brought about by the strict interpretation of the Convention. The real situation is different from the one which is assumed: when deciding on cases on the basis of the Convention, which does not include the concept of a “political party”, the Strasbourg Court concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in accordance with [general] principles and the universal understanding [of those concepts]. The Turkish constitutional court judges, if they wished to do so and could develop the necessary intellectual skills, could ease the restrictive provisions of positive law in Turkey. So long as they wanted to do so. Moreover, it is difficult to consider the aforementioned statement of the chairman to be sincere. If the problem is [one of] making changes to the Constitution and the law, the Turkish Grand National Assembly actually enacted a statutory amendment, which defined [what it means] for political parties to become a “hub” in a highly reasonable way and which set criteria to ensure its implementation. Why did the Constitutional Court annul this amendment in accordance with an authoritarian understanding? In this case, the problem is related to the fact that our constitutional court judges have not taken on board freedoms, rather than the assertion that the current laws are unsuitable. 6. This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it. It is because of this reason that the obstacle to freedoms in Turkey is not Parliament, which does not change the Constitution and which does not enact the necessary laws. The real obstacle is the Constitutional Court, which does not shy away from being the systematic shredder of freedoms. It is urgently necessary to deal with the issue of membership in the Constitutional Court.”

It appears that following the publication of the article all members of the Constitutional Court brought separate civil actions against Mr Mustafa Erdoğan, Mr Haluk Kürșad Kopuzlu and the publishing company (hereinafter “the defendants”), seeking damages for the injury they claimed to have sustained as a result of the applicants’ serious attack on their honour and integrity through the publication of the above article, which had contained, in their view, defamatory passages.

The present applications concern the damages claims brought against the applicants by Ms F.K., Mr Y.A. and Mr M.B., judges and in the case of the last claimant, the president, of the Constitutional Court at the material time.

Before the domestic courts the applicants maintained that, while the expressions used in the article had been severe in terms of form and style, they had remained within the limits of the freedom of expression, as they had had a basis in fact. In this connection, the applicants, referring to the case-law of the European Court of Human Rights, asserted that the article in question had criticised the judgment of the Constitutional Court with respect to its decision to dissolve the Fazilet Party, that the acceptable limits of criticism should be more extensive for judges, high level public officials and politicians than others, and that value judgments which were made on the basis of fact were in conformity with the law. On this latter point, the applicants, relying on the views of various academics, politicians and journalists, underlined that a segment of the public believed – rightly or wrongly – that the judgment of the Constitutional Court had been given under the influence of the military and that there were certain parallels between the outcome of the judgment and the general political situation existing in Turkey at the time. Likewise, again relying on various articles, notably certain statements made by a number of judges sitting on the bench of the higher courts, including the Constitutional Court, the applicants argued that the statements regarding the lack of skill of the judges sitting at the Constitutional Court were not without any factual basis. The applicants submitted that numerous criticisms had been voiced against the judgment of the Constitutional Court by academics, journalists and politicians, and underlined that the first applicant, who was a professor of constitutional law, had consistently emphasised in his publications that the basic function of constitutional courts – or similar organs – in constitutional democratic systems is to serve as the guarantee of basic rights against arbitrary actions of the State and that high court judges – and indeed judges in general – have to avoid giving judgments corresponding to their ideological opinions and political tendencies.

On 28 March 2002 the 17th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Ms F.K., jointly, 2,500,000,000 Turkish lira (TRL – approximately 2,000 euros (EUR)) in damages, plus interest at the legal statutory rate running from the date the article in question was published.

In its judgment, the court referred to the following passages: “...it is commonly believed that this judgment is not the product of the free will of the Constitutional Court but that it was brought about under pressure from and at the suggestion of military circles... it is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the court was put under direct pressure... From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices... In other words, our problem is that most of our constitutional law judges do not know the law and do not have knowledge of democracy, political and constitutional theory and secularism. Nor do they intend to acquire it ... This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it.”

The court held that the author, in the above statements, had asserted that the members of the Constitutional Court had rendered their judgment under pressure, that the judges of the court did not know the law, and that their professional knowledge and intellectual capabilities were insufficient. It considered that these expressions constituted defamation of the members of the Constitutional Court, including the claimant, who had rendered the judgment ordering the dissolution of the Fazilet Party.

On 19 December 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

On 24 March 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 26 April 2003.

In the meantime, on 16 July 2002 the 20th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr Y.A., jointly, TRL 3,000,000,000 (approximately EUR 1,755) in damages plus interest at the legal statutory rate running from the date of the publication of the article.

In its decision, the court observed that, when read as a whole, the article, instead of merely criticising the establishment, development, and selection of members of the Constitutional Court or providing a technical criticism of the judgment, had contained severe attacks against the judges themselves and their professional or analytical capabilities. Referring to various passages, notably those mentioned by the 17th Chamber above, the 20th Chamber considered that the author, who had accused the judges of serious misconduct such as receiving instructions, of acting irresponsibly and of not being independent and lacking reasonable logic and conscience, had gone beyond objective and technical criticism of the Constitutional Court and its judgment and that the article had therefore defamed the claimants.

On 15 April 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

On 3 July 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 30 July 2003.

Likewise, on 12 December 2002 the 9th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr M.B., jointly, TRL 2,500,000,000 (approximately EUR 1,557) in damages, plus interest at the legal statutory rate running from the date the article in question was published.

In its decision, the court, referring to similar passages to those relied on by the other Chambers, considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person’s dignity and honour, and that the author had overstepped the boundaries of acceptable criticism and had used words which constituted defamation.

In this connection, the court stated that the aim of press freedom is to provide correct and truthful news regarding issues of public interest, and that the privileges attached to press freedom were not without limits. It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of the Code of Obligations and the Civil Code. The court underlined that in its duty to inform, the press was limited in its criticism by the following rules: truthfulness, public interest, topicality and interconnectedness between the thoughts, the subject and the words used.

The court opined that in the present case, while the overall content of the author’s article had been within the boundaries of criticism, certain remarks contained in the article had gone beyond the limits of acceptable criticism, there had not been harmony between the form and the content, the content had gone beyond the subject of criticism, and words used in the article had constituted defamation of the claimant. It held that the author could have made the same criticism without the use of these words.

On 18 November 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.

On 29 April 2004 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 7 June 2004.