Critical Constitutional Court meeting that could impact İmamoğlu cases postponed

The Çorum 3rd Criminal Court of First Instance, in a file before it, found the provisions of the Turkish Penal Code regarding the crime of insult to be unconstitutional and applied to the high court. The court requested the cancellation of the provision in Article 125, paragraph 3/a of the Turkish Penal Code, which states that "the lower limit of the penalty for the crime of insult committed against a public official due to their duty cannot be less than one year." Furthermore, it requested the removal of the part in Article 131, paragraph 1, titled "Condition of investigation and prosecution," which excludes "crimes committed against a public official due to their duty" from the scope of the complaint requirement for insult crimes.

The General Assembly of the Constitutional Court has left the deliberation of this application, which was on its agenda, to a later date. According to information obtained, the deliberation of the file was postponed to the next meeting because one of the members was on leave.

IF CANCELLATION COMES, WHICH OF İMAMOĞLU’S FILES WILL BE AFFECTED?

It is assessed that the decision to be made by the Constitutional Court could have consequences in two different files that are ongoing or have been adjudicated regarding Istanbul Metropolitan Municipality Mayor Ekrem İmamoğlu.

The 1-year, 5-month, and 15-day prison sentence given by the Istanbul 14th High Criminal Court against CHP's presidential candidate Ekrem İmamoğlu due to his remarks about Istanbul Chief Public Prosecutor Akın Gürlek at a panel falls under the scope of "insult against a public official."

In addition to this, the 2-year, 7-month, and 15-day prison sentence given by the Anadolu 7th Criminal Court of First Instance and upheld by the appellate court, known in the public as the "fool" (ahmak) case, due to İmamoğlu's expressions regarding YSK members, was also handed down on charges of "public insult against public officials working as a board due to their duties."

Since the nature of the crime in both files was evaluated within the framework of insulting a public official due to their duty, a possible cancellation decision from the Constitutional Court is shown as a factor that could affect the course of the trials in terms of the lower limit of the penalty and the condition of being subject to a complaint.

Marmara University Faculty of Law Constitutional Law Lecturer Prof. Dr. Tolga Şirin stated in his assessment to ANKA that the distinction between insult and criticism is always controversial, but that freedom of expression lies at the root of the debate.

Prof. Dr. Şirin explained that there is a clear trend worldwide toward removing the crime of insult from the scope of criminal law and continued as follows:

"The allegation that a person has insulted another person is now considered in most countries to be a matter of private law, that is, compensation lawsuits, rather than criminal proceedings. In Turkey, insult is still regulated as a crime. However, the issue before the Constitutional Court is not so much whether insult is a crime, but why the penalty is aggravated when the words considered insults are directed at public officials. In my opinion, the TCK 125/3 provision is contrary to Article 26 of the Constitution, which regulates the freedom to express thoughts, and Article 28, which regulates freedom of the press.

Both the Constitutional Court's and the European Court of Human Rights' established jurisprudence are clear. As a person's authority and public power increase, their obligation to endure criticism also increases. Democracy considers it normal, and even a necessity, for those who use public power to be exposed to harsh and sometimes disturbing criticism by society. If the jurisprudence is this clear, it is also clear that a norm that punishes expressions directed at public officials more severely reverses this logic. Providing a separate lower limit in criminal law creates a chilling effect on freedom of expression; it weakens the public's right to supervise officials who are performing their duties. For this reason, the provision in question must be cancelled."

Reminding that they presented a scientific opinion upon the application of Lawyer Mehmet Pehlivan in the file known in the public as the "Fool Case," together with Prof. Dr. Adem Sözüer, Şirin made the following assessment:

"There, too, we set out the unconstitutionality of the norm with detailed justifications in terms of both the Constitution and international jurisprudence. Many Constitutional Courts in the world have cancelled similar provisions based on the same principled framework. The Constitutional Court should also make a decision in the same direction."