Individual Application

The Facts

At the material time, the applicant, a lawyer, attended a hearing as the counsel of an accused in the course of the proceedings before the assize court. A judicial fine was subsequently imposed on him, for insulting the officer in charge, due to his certain expressions towards the public prosecutor during that hearing. The applicant then lodged an individual application with the Court, which found a violation of his freedom of expression for imposition of the impugned fine.

On the same day, the assize court notified both Istanbul Bar Association and the Union of Turkish Bar Associations for taking the necessary disciplinary action against the applicant. Having examined the statements in the minutes of hearing, the Disciplinary Board of the Istanbul Bar Association (“Disciplinary Board”), relying on Article 135 § 1 of the Attorneyship Law no. 1136, imposed a disciplinary sanction of warning on the applicant. His challenge to this sanction was dismissed by the former, and his action for annulment thereof was also rejected by the incumbent administrative court. The decision was ultimately upheld by the regional court of appeal.

The Applicant’s Allegations

The applicant claimed that his freedom of expression had been violated due to the imposition of a disciplinary sanction on account of his expressions during a hearing.

The Court’s Assessment

It is one of the prerequisites for ensuring and promoting the respect and confidence, inherent requirements of attorneyship, that those who hold office as a lawyer perform their duties properly.

Lawyers are entitled to make criticisms about the functioning of the judiciary on condition of not exceeding certain limits. Such limits are necessary for the protection of all public officials including judges, prosecutors and justices of higher courts, who serve to ensure the proper functioning of the judicial system.

Undoubtedly, lawyers are expected to make use of all mechanisms of prosecution and defence made available by the legal order so as to freely and duly perform their duties. Although this right derives from the immunity of defence, which is an indication of the lawyers’ independence, it is not unlimited. Exercising this right, lawyers must comply with the professional rules, make sure that their words and expressions directed towards other judicial actors are related to the subject-matter of the case, and abstain from exceeding the extent required for the protection of their clients’ interests.

Even during a hearing with a tense atmosphere, parties should pay the utmost attention and respect to each other, as well as they should abide by the rules and requirements imposed on them by virtue of their profession. In this context, lawyers should also show the utmost diligence as well as be kind and prudent in order to ensure the proper conduct of the hearing, and they should act in conformity with the dignity and solemnity of their profession, and in a manner worthy of the respect inherent in the profession.

In the present case, there is a dispute regarding the content of the applicant’s words during his defence against the public prosecutor’s opinion. According to the minutes of hearing, the applicant used expressions such as "I recommend that the prosecutor study law again. Either he did not study law or he has not read the file (Savcı hukuk fakültesini yeniden okusun, ya hukuk fakültesini okumadı, ya dosyayı okumadı)”. However, the applicant denied the said minutes and claimed that he used the expressions such as “I have graduated from the Istanbul University Faculty of Law, and I do not know which faculty the prosecutor graduated from, since we have not been taught that way (Ben İstanbul Hukuk Fakültesinden mezun oldum, savcı beyin hangi fakülteden mezun olduğunu bilmiyorum, bize böyle öğretilmedi)”.

It is obvious that the impugned expressions did not contribute to the clarification of the case or the proper administration of justice. On the contrary, the expressions uttered by the applicant were intended not to perform the defence duties, but rather to offend the public prosecutor expressing his opinion, and they were therefore prejudicial to the ethical rules and reputation of the profession.

Lawyers are free to make explanations on the merits of the proceedings with a view to performing their duties properly. However, questioning the competence of any of the judicial actors has no concern with the merits of the trial, as well as it casts doubt on the dignity of the trial venue. The administrative court, referring to the reasoning of the assize court carrying out the criminal proceedings regarding the impugned expressions, explained why it relied on the minutes of hearing, the content of which was denied by the applicant. Hence, also referring to the Professional Rules of the Union of Turkish Bar Associations, it concluded that the decision of the Disciplinary Board had been lawful.

Regard also being had to the aforementioned considerations as a whole and to the margin of appreciation enjoyed by the judicial authorities in balancing different interests, it has been concluded that the State did not fail to fulfil its positive obligations within the context of the applicant’s freedom of expression.

Consequently, the Court has found inadmissible the alleged violation of the freedom of expression as being manifestly ill-founded.