Freedom of Expression in the Case-Law of the Turkish Constitutional Court *

Zühtü Arslan**

Distinguished Participants,

Ladies and Gentlemen,

It is a great pleasure to be here and address such eminent participants.

I would like to thank the President of the Constitutional Court of North Macedonia for kindly inviting us and hosting this conference.

I would like to begin my brief speech with a simple conceptual question: “Why do we need freedom of thought and expression?”

In order to answer this question properly we have to understand the true nature of human being and society. The act of thinking and speaking lies at the heart of human existence. Human beings cannot be conceived without the acts of thinking and speaking.

Mevlâna Jalaluddin Rumî considered thinking as the essence of a human being. He states: "man consists of thought, and the rest is nothing but flesh and bone".¹ As thinking and speaking beings, we need freedom of expression to realise ourselves. The denial of this freedom will therefore infringe the essential nature of human beings.

Of course, thought does not make any sense if it is confined to the human mind. What really matters is to be able to reflect this thought and express it. Again, Mevlâna defines freedom of expression in an almost absolute manner. He says: “if you are not a slave, address as a sultan, express your opinions in whatever way you like”.²

The nature of society also requires us to enjoy freedom of thought and expression. It is a very well-known fact that we live in a diverse society in terms of nationality, ethnicity, religion, ideology, lifestyle and so on. “All human activities”, as Hannah Arendt put it eloquently, “are conditioned by the fact of human plurality, that not one man, but men in the plural inhabit the earth and in one way or another live together”.³

Since modern society is inevitably pluralist, it requires the co-existence of different and often conflicting ways of life, ideas and ideologies. Freedom of expression is an effective instrument for nurturing and maintaining such a diverse and plural society and politics. Wittgenstein, a leading linguistic philosopher of the last century, emphasised the importance of a pluralistic way of thinking by stating that “A main cause of philosophical disease- a one-sided diet: one nourishes one’s thinking with only one kind of example”.⁴

It is impossible to cure philosophical and political diseases without protecting the right to freedom of thought and expression. That is why we need to effectively protect the freedom of thought and expression.

Distinguished Participants,

The Constitutional Court of Türkiye (the Court) has consistently pointed out that the freedom of expression constitutes one of the basic pillars of a plural democratic society. For the Court, the freedom of expression is necessary not only for a pluralist political and civil society, but also a precondition of realising ourselves as moral agents.⁵

Bearing in mind this crucial role, the Court has interpreted and applied the constitutional provisions concerning freedom of expression in a strict and vigilant manner. In both areas of constitutionality review and individual application, the Court has adopted what I call “a right(s) based” paradigm which requires us to interpret the constitutional provisions in favour of freedoms. The rights-based paradigm assumes that freedom is the rule and restriction is the exception.

This paradigm reflects the combination of two interrelated meanings of the word “right”. First, as we all know, the term “right” means “justice” or “fairness”. Second, “right” usually refers to the enjoyment of something, as in the example of the right to life, or right to property. So, we can define the rights-based paradigm as the one that aims to protect rights by ensuring constitutional justice.

The Court applies a three-level test provided by Article 13 of the Constitution in evaluating the restrictions on the freedom of expression. First of all, an act of parliament is necessary to impose restrictions on the freedom of expression. Secondly, the restrictions must pursue certain legitimate aims such as the protection of public security and the rights and liberties of others. Finally, the restrictions must be proportionate and necessary in a democratic society. In this regard, following the footsteps of the European Court of Human Rights, the Court has invoked the conceptions of “pressing social need” and “proportionality” in deciding whether an impugned restriction constitutes a violation of the freedom of expression.

The Constitutional Court makes it clear that the existence of a formal act of parliament is not sufficient to restrict freedom of expression. The law must also meet substantive qualifications such as clarity, certainty and foreseeability. Furthermore, the law must contain certain safeguards for freedom of expression against arbitrary interference by public authorities.

Let me give you a few examples of how these tests are applied in the case-law of the Constitutional Court.

In its early judgments concerning Twitter and Youtube, the Court found a violation of the freedom of expression on the ground that a blanket ban on these platforms was not compatible with the law and that the relevant provision of the Law on Internet failed to meet the requirement of legality.⁶ The Court later annulled that legal provision on the same basis in a concrete norm review case.⁷

In many other cases, the Constitutional Court has also found a violation of freedom of expression and press on the basis that the relevant legal provisions (Article 8/A and 9 of the Law on Internet) do not provide the basic guarantees capable of preventing arbitrary behaviour of the public authorities and ensuring a fair balance between freedom of expression and the legitimate right of a democratic society to protect itself against threats like terrorist activities.⁸

Apart from the principle of legality, the Court has frequently applied the criteria of “necessary in a democratic society” in its judgments. For instance, in the Wikimedia Foundation case, where the access to Wikipedia was blocked due to the contents available on two URL addresses, the Court pointed out that the blocking of access to Wikipedia in Türkiye was an interference not only with the freedom to disseminate information and thoughts enjoyed by the applicant in its capacity as the content provider but also with the Turkish users’ right to receive information and thoughts. Having considered the permanent nature of this blanket ban on access to the entire website, the Court reached the conclusion that such restriction on freedom of expression was disproportionate and incompatible with the requirements of a democratic society. ⁹

Similarly, in a constitutionality review case, the Court has annulled the provision allowing for the imposition of a disciplinary sanction on the law-enforcement officers for directing criticism, either orally or in written form, towards the acts and actions of their superiors during office. The Court held that the contested provision punishes all kind of unfavourable criticisms directed towards the superiors without determining whether it has damaged the superiors’ authority and has involved any element damaging the hierarchical order or functioning of the agency. In this sense, the Court declared that the restriction imposed on the freedom of expression is not compatible with the requirements of a democratic society.¹⁰

Distinguished Participants,

I would like to conclude my speech by saying that all these judgments and many others clearly reveal that the Constitutional Court of Türkiye has provided an immense and invaluable contribution to the protection of freedom of thought and expression. By doing so, the Court also plays a crucial role in maintaining the values of toleration, pluralism and open-mindedness, which are the distinctive features of a democratic society.

I sincerely believe and hope that the constitutional courts, as indispensable institutions of constitutional democracy, will continue to protect the freedom of thought and expression.

Thank you for your attention.      

^* The Speech delivered at the International Conference on “Constitutional-Judicial Protection of the Freedom of Thought and Public Expression of Thought”, Skopje, North Macedonia, 15 March 2024.

^** The President of the Constitutional Court of Türkiye.

¹ See Ergin Ergül, Rumi: A Guide for Universal Justice and Peace, (Ankara, 2017), p.58-59.

² Cited in Ergül, Rumi, p.63.

³ Hannah Arendt, The Freedom to Be Free, (Milton Keynes: Penguin Books, 2020), p. 26.

⁴ Ludwig Wittgenstein, Philosophical Investigations, trans. G.E.M. Anscombe, (Oxford: Basil Blackwell, 1958), §593, p. 155.

⁵ See Bekir Coşkun [Plenary], App. no: 2014/12151, 4 June 2015, §§ 34-35. For the same approach in the field of constitutionality review see Constitutional Court’s decision, Е.2017/162, K.2018/100, 17 October 2018, § 109; Constitutional Court’s decision, E.2022/129, K.2023/189, 8 November 2023, § 11.

⁶ See Yaman Akdeniz and Others, App. no: 2014/3986, 2 April 2014, § 49; Youtube LLC Corporation Service Company and Others [Plenary], App. no: 2014/4705, 29 May 2014, §§ 56-57.

⁷ See Constitutional Court’s decision, E.2015/76, K.2017/153, 15 November 2017, §§ 31-33.

⁸ See Keskin Kalem Yayıncılık ve Ticaret A.Ş. and others, [Plenary], App. no: 2018/14884, 27 October 2021; Abdullah Kaya and Others, App. no: 2016/1430, 22 November 2023; Artı Media Gmbh. [Plenary], App. no: 2019/40078, 14 September 2023; Ahmet Alphan Sabancı and Others, App. no: 2015/13667, 21 November 2023.

⁹ See Wikimedia Foundation Inc. and Others [Plenary], App. no: 2017/22355, 26 December 2019.

¹⁰ See Constitutional Court’s decision, E.2021/22, K.2022/6, 26 January 2022.