ORHAN KEMAL – Members of high courts can be criticized harshly

Members of high courts can be criticized harshlyOn May 27, the European Court of Human Rights (ECtHR) delivered an important judgment regarding the scope of freedom of expression when it comes to criticizing courts.This is the case of Mustafa ErdoIan and others vs.

Turkey, in which I represented the applicants before the ECtHR.The full text of the judgment can be found at http:hudoc.


aspx?i=001-144129The judgment concerns large compensation sums paid by a constitutional law professor, Mustafa ErdoIan, for his criticism of members of the Constitutional Court after this court ruled to close the Virtue Party (FP).ErdoIan wrote an article in 2001 criticizing the members of the Constitutional Court for closing the party.

In those days the Constitutional Court had a frequent habit of closing political parties, especially those not liked by military circles.The European court’s judgment in ErdoIan’s case is extremely important because ErdoIan’s criticism of the members of the court was quite harsh and very strongly worded.

And it is also known that the ECtHR does not allow the same high limits for criticism of the judiciary as it does for that of politicians.As summarized by the ECtHR, ErdoIan “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.

”Domestic courts regarded these words as personal insults towards the members of the Constitutional Court and ordered ErdoIan to pay a sum in compensation to themThe ECtHR does not agree with the Turkish domestic courts. And it concluded that, with these defamation cases, the freedom of expression of ErdoIan had been limited.

I highlighted some important paragraphs in the judgment of the ECtHR and would like to share them with you:“The Court has stated on many occasions that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection.”“This freedom, however, is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence”“The Court finds that the subject matter of the article in question, written by an academic, concerned an important and topical issue in a democratic society which the public had a legitimate interest in being informed of and therefore that the article in question contributed to a debate of general interest.

”“the Court reaffirms that the courts, as with all other public institutions, are not immune from criticism and scrutiny. In particular, a clear distinction must be made between criticism and insult.

”“The Court considers that some of the language and expressions used in the articlewere harsh and that they could be perceived as offensive. They were, however, mostly value judgments, coloured by the author’s own political and legal opinions and perceptions.

In this connection, the Court also observes that they were based on the manner in which the Constitutional Court ruled on certain issues and that these rulings, including the dissolution of the Fazilet Party, were already subject to virulent public debate They could therefore be considered to have had a sufficient factual basis”“the Court considers that the domestic courts, in their examination of the cases, omitted to place the impugned remarks within the context in which they were expressed.”“Thus, when account is taken of the content of the article as a whole, and the context in which they were expressed, the Court is of the opinion that the impugned strong and harsh remarks contained in the article, set out in general terms, with respect to the judges of the Constitutional Court, cannot be construed as a gratuitous personal attack against the claimants.

The Court also takes note that the article in question was published in a quasi-academic quarterly as opposed to a popular newspaper”It is also interesting that Turkey will have to compensate ErdoIan for the sums of compensation awarded to the individual members of the Constitutional Court.

SOURCE: Today’s Zaman

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