“The Protection of fundamental rights and freedoms is the raison d’être of the Constitutional Court”

A symposium on “the Protection of Fundamental Rights and Freedoms in the Age of the Internet” was held on the occasion of the 8^th anniversary of the adoption of the mechanism of individual application to the Constitutional Court.

Click for the opening speech of Prof. Dr. Zühtü Arslan, President of the Turkish Constitutional Court. 

The symposium attended by a limited number of participants due to the Covid-19 pandemic was broadcasted live on official web-site and twitter account of the Court. 

The event, started with a stand in silence and the Turkish National Anthem, proceeded with the introductory video “8 years in Individual Application”.

President Arslan could not attend the opening ceremony due to the funeral of his father-in-law, Derviş Tarakçı. The opening speech prepared by President Arslan was delivered by Mr. Hasan Tahsin Gökcan, Vice-President of the Court.

In his speech, President Arslan stated that in almost all democratic countries, there were supreme courts that reviewed, and where necessary overruled, legislative and executive acts in order to protect fundamental rights and freedoms. Noting that protecting fundamental rights and freedoms by ensuring security was the raison d’ĕtre of the State as a whole, President Arslan indicated that today's constitutional courts were established in pursuance of the separation of powers, an essential element of constitutional democracies.

-Relationship between Security and Freedom-

President Arslan stated that another reflection of the separation of powers could be seen in the relationship between security and freedom and accordingly added:

“Security is a prerequisite to ensure the existence of individuals and society in peace. Rights and freedoms cannot be enjoyed where there is no security. In this sense, one of the fundamental duties incumbent on the State and especially on the executive power is to ensure security. Besides, security is not a matter of result, but of means. It is the means for a freer, more equitable and just social order.”

-Importance of Individual Application Mechanism-

Pointing to the importance of the individual application mechanism, President Arslan stressed that this mechanism brought the Constitutional Court's duty to protect fundamental rights and freedoms to the forefront and that the Court had set the standards regarding the constitutional rights and freedoms within the scope of individual application, including but not limited to the rights to life, to hold meetings and demonstration marches, to the right to a fair trial and the freedom of expression.

He further noted that despite increasing workload and unfavourable circumstances, the Constitutional Court ensured that the individual application mechanism be used as an effective legal remedy and provided statistical information regarding individual applications.

Accordingly, President Arslan, stating that the Court had so far received a total of approximately 285,000 applications out of which nearly 243,000 had been concluded, informed that around 42,000 applications were pending before the Court which issued violation judgments in over ten thousand cases it had dealt with; and that given the distribution of the violation judgments based on fundamental rights and freedoms, the top three were the right to a fair trial (54%), the right to property (26.7%) and the freedom of expression (5.7%).

-Freedom of Expression-

Pointing to the important place occupied by the complaints regarding the freedom of expression among the cases where the Constitutional Court had found violations, President Arslan noted that freedom of thought and expression was the constant issue of social, political and legal debates and also added:

“We do not have to agree with what is said, but we have to tolerate it. We may not find pleasant what is said, but we have to condone and tolerate generously the person saying it. The scope of freedom of expression is broad. Especially, what is essential in that regard that freedom should be the standard, and limitation is the exception In this context, as a rule, any expression other than incitement to violence and terrorism, hate speech, threat and insult should be protected by the legal order.”

“Terrorism is one of the main reasons for restricting freedom of expression”

President Arslan, indicating that terrorism -one of the main reasons for restricting freedom of expression- was among the greatest threats to freedom of expression, underlined that it was also a constitutional obligation to maintain the fight against terrorism within the boundaries of law.

Reminding that in the history of the fight against terrorism, there was a trap that democratic states might sometimes fall into, and it may have been said sometimes of the necessity to put the law aside or on hold to fight terrorism, he stated “In fact, this is exactly what terrorists seek. It is known that an understanding and practice that considers the law as a hindrance may overshadow the legitimate fight and thus result in heavy costs in the long run.”

He stated that a place without freedom of expression would be devoid of also democracy and further emphasised that criticisms directed towards judicial decisions were also within the sphere of the freedom of expression.

Stating that judicial decisions, notably those rendered by the Court, were not sacred texts, President Arslan accordingly noted “They may be, and indeed ought to be, subject to criticism, which is mostly to the advantage of the judicial body the decisions of which have been criticised. To that end, the Court had been, for years, holding symposia whereby its decisions and judgments were discussed and criticised and had compiled the presentations delivered during these events in its journal of Constitutional Justice (“Anayasa Yargısı”).”

-Two considerations for ensuring usefulness of criticisms-

Pointing to the significance of a minimum of two considerations ensuring the criticisms directed towards judicial decisions to be useful, President Arslan stressed:

“First, before directing a criticism against any form of text, it should be read thoroughly and comprehended. It is also the same for the judicial decisions. Criticisms made on the basis of presumptions even before the publication of the reasoning of a given judgment, or after its publication but without being read, lead to misinformation and misguidance. In consideration of certain criticisms against the Court’s decisions and judgments, we have observed that they are criticised without being read, or sometimes without being sufficiently comprehended. However, a sound criticism entails reading as well as an accurate understanding of the contents read. Otherwise, expressions which are not indeed considered in the judgment may be reflected as if they were stated. 

Second, the effectiveness and usefulness of the criticism for those criticised largely depends on the tone used. “How” you express is generally more important than “what” you express. Undoubtedly, the tone or style used is also under the protection of the freedom of expression. Everyone is, of course, free to use the tone of his own choice. However, it is clear that commentary directed at those rendering the judgment but not at the judgment itself and going beyond criticism would be of no avail as it would detract from the aim underlying the criticism.”

“If you wish to make any contribution to the Constitutional Court, I kindly invite you to criticise its decisions and judgments”

President Arslan stated that the Court strived for maintaining the democratic state governed by rule of law, a characteristic of the Turkish Republic, which safeguarded the fundamental rights and freedoms, within the boundaries of the duties and powers conferred upon it by the Constitution and laws and that the Court endeavoured to perform this duty in the best possible way. He further noted “I would like to take this opportunity to issue a call to the public. If you wish to make any contribution to the Constitutional Court, I kindly invite you to criticise its decisions and judgments. We actually value and consider such criticisms”.   

- Sessions-

During the first session on “Access to Internet and Freedom of Expression”, moderated by Assoc. Prof. Dr. İbrahim Şahbaz, Head of the 4^th Criminal Chamber of the Court of Cassation, the presentations were submitted on “Responsibilities of the Internet Actors in the context of the Protection of Fundamental Rights” by Mr. Bahadır Aziz Sakin, Head of the Internet Department at the Information Technologies and Communications Authority, on “Control of Internet and Legal Liability Regime in line with Human Rights” by Dr. Mehmet Bedii Kaya, Lecturer at the İstanbul Bilgi University, Faculty of Law, Information Technology Law Department, and on “Constitutional Court’s case-law on Denial of Access to Internet” by Ms. Ceren Sedef Eren, rapporteur-judge at the Constitutional Court.

The second session on “Internet and Protection of Personal Data” was moderated by Assoc. Prof. Dr. Selami Demirkol, judge at the Assembly of Civil Chambers, the Council of State. During the second session, the presentations were submitted on “Law on the Protection of Personal Data and Its Implementation” by Prof. Dr. Faruk Bilir, Head of the Board of Protection of Personal Data, on “Protection of Personal Data as a Fundamental Right in Data-Driven Economy Era” by Assoc. Prof. Dr. Mesut Serdar Çekin, Lecturer at the Turkish-German University, Faculty of Law, Civil Law Department, and on “Constitutional Safeguards and Principles on the Right to Request the Protection of Personal Data” by Mr. Özgür Duman, rapporteur-judge at the Constitutional Court. Subsequent to the sessions, the presenters replied the questions asked by the participants.

-Closing Speech and Award of Plaque-

The closing speech was delivered by Mr. Kadir Özkaya, Vice-President of the Court. 

Vice-President Özkaya stated that public access to the symposium held with a limited number of participants was ensured through a live broadcast on the Court’s official web-site and social media account.

Further noting that the presentations submitted during the symposium would be compiled in the Court’s journal of “Constitutional Justice”, Vice-President Özkaya extended his thanks to the moderators, the presenters and all participants for their contributions.

At the end of the symposium, the moderators and the presenters were awarded a plaque by Vice-President Hasan Tahsin Gökcan.