Constitutional Court ruling on Kılıçdaroğlu's remarks about Davutoğlu: 'Severely mentally disabled'

Kemal Kılıçdaroğlu, the 7th Chairman of the CHP, used the following expression during a parliamentary group meeting on October 9, 2012: "Who is on Turkey's side? Hamas is there, Barzani is there, Qatar is there, Saudi Arabia is there. I turn to the other side of the equation. On Syria's side, there is Iran, Russia, China, and Brazil. Half of the world's population is there. Is this strategic depth, or is it strategic blindness? If one sets out with a Foreign Minister whose incompetence is known to the world, who has dragged Turkey into such a process and brought this meaningless balance upon us, this is the point Turkey has reached. You don't need profound knowledge for this. To do this, one must be severely mentally disabled." 

Following Kılıçdaroğlu's statement, the then-Minister of Foreign Affairs Ahmet Davutoğlu filed a lawsuit for 50,000 TL in non-pecuniary damages in the Civil Court of First Instance, claiming that his personal rights were targeted and that the remarks contained insults directed at him.

The court of first instance had ruled that Kılıçdaroğlu should pay 4,000 TL in non-pecuniary damages. Upon appeal of the relevant decision, the 4th Civil Chamber of the Court of Cassation overturned the decision of the court of first instance. According to the Court of Cassation, considering the political identities of the parties and the context in which the disputed expressions were used, it was stated that Kılıçdaroğlu's words constituted harsh criticism. 

After the reversal, the court of first instance insisted on its initial decision. In its justification for the resistance decision, the court explained the meaning of the word "incompetent" (çapsız) in the Turkish Language Association's dictionary and also defined the expression "severely mentally disabled." According to the court, accepting the expressions "incompetent" and "severely mentally disabled" used by Kılıçdaroğlu against Davutoğlu, who was the Foreign Minister at the time, as heavy criticism within the scope of freedom of expression would "lead to the formation of negative attitudes and behaviors in Turkish society by creating the freedom for politicians to say all kinds of things to each other." 

Following the resistance decision, the file was sent to the General Assembly of Civil Chambers of the Court of Cassation. The General Assembly of Civil Chambers also found the resistance decision appropriate and upheld the decision of the court of first instance regarding the partial acceptance of the non-pecuniary damages claim by a majority vote. In the upholding decision, it was evaluated that the expression "whose incompetence is known to the world" used by Kılıçdaroğlu about Davutoğlu was in the nature of harsh criticism and that the resistance decision was not appropriate in this respect. It was stated that the expression "one must be severely mentally disabled" was humiliating and demeaning, that it was not possible to evaluate it within the scope of freedom of expression, and that it was concluded that it constituted an attack on the plaintiff's personal rights.

COMPENSATION WILL BE PAID TO KILIÇDAROĞLU

Upon this, Kılıçdaroğlu filed an individual application to the Constitutional Court on March 11, 2022. The Constitutional Court, which examined the file, decided that the claim regarding the violation of freedom of expression was admissible and that the "freedom of expression" guaranteed in Article 26 of the Constitution had been violated. The High Court also ordered that 30,000 TL in non-pecuniary damages be paid to Kılıçdaroğlu.

The reasoned decision of the High Court is as follows:

"The expressions subject to the application were uttered in 2012 at the parliamentary group meeting of the main opposition party, of which the applicant was the chairman. Group meetings are held every week by political parties with groups in Parliament, open to the press, and are meetings where issues concerning the country's agenda that occupy or will occupy the public are discussed. In this context, it is seen that the applicant, in the concrete case, shares his observations and criticisms regarding foreign policy in general. The plaintiff, on the other hand, was the Minister of Foreign Affairs at the time the speeches were made. In his aforementioned speech, the applicant stated that as a result of the government's pursuit of a wrong foreign policy in the face of the war that started in Syria in 2011, Turkey had alienated more than half of the world's population. According to the applicant, the minister responsible for foreign policy does not possess the sufficient qualifications for the duty he undertook. It can be said that the applicant used the term 'incompetent' about the plaintiff to express this opinion. Again, wanting to emphasize that the government gave authority and responsibility to the wrong person to carry out the ministry duty, the applicant stated that such a wrong choice could only stem from 'mental retardation'."

"THE EXPRESSIONS ARE VALUE JUDGMENTS"

The expressions in question are in the nature of value judgments. However, it should not be forgotten that even if a statement consists entirely of value judgments, the proportionality of the intervention should be determined according to whether the disputed statement is sufficiently supported by concrete elements. Because if it is not supported by concrete elements, the value judgment may be disproportionate. Therefore, the issues that need to be determined are whether the applicant arbitrarily targeted the plaintiff with his expressions and whether the words and expressions he used constituted an unprovoked personal attack. In the opinion of the Constitutional Court, the applicant, in his capacity as the chairman of the main opposition party, is expressing his views on a current debate that is at the top of the country's agenda regarding the negative effects that the Syrian war, which was still very new at the time of the speech, created on Turkey's geopolitics and position in foreign policy, and which are highly likely to create in the future. In this case, it cannot be said that the applicant's speech was arbitrary and devoid of concrete grounds.

Moreover, the applicant's expressions relate to the public duty performed by the plaintiff and in this sense are undoubtedly part of a debate on a matter of public interest. For the expressions subject to the application do not concern the plaintiff's private life, but rather his political activities. It should not be forgotten that the voicing of grievances on issues that concern the entire society and about which there is no doubt that they contribute to a public debate is only possible in democratic regimes where thoughts can be expressed without encountering any obstacles. 

It is seen that the applicant, in his speech at the group meeting as the chairman of the main opposition party, aimed to gain an advantage in the political arena and at the same time motivate the people in his party organization by criticizing the foreign policy of a country where a war is taking place right next to it, and thus the government. Indeed, it must be accepted that the words politicians use against each other are part of a political style aimed at clearly provoking polemics, creating violent reactions, and consolidating their supporters.

"IT IS PART OF THE RULES OF THE GAME FOR POLITICIANS"

The freedom of political debate is a principle at the heart of the ideal of a democratic society. The expressions at the center of the dispute are a harsh criticism of the government's foreign policies. Even heavy criticisms are part of the rules of the game for politicians. Considering the political identities of the parties, the plaintiff should show more tolerance to the remarks about him than ordinary people. In this context, it should be added that, as the Constitutional Court has stated many times before, the scope of freedom of expression is much broader in debates between politicians. Because freedom of expression is especially valuable for elected persons who represent their voters, convey their demands, concerns, and thoughts to the political arena, and defend their interests. For this reason, if an intervention is directed at the freedom of expression of a politician, especially a chairman of an opposition party, the applications must undergo a much stricter scrutiny.

In addition, the plaintiff also has ample opportunities to respond to harsh and heavy criticisms about him through different levels of communication tools. People with a politician aspect, due to their political positions, have much easier access to the written and visual press compared to people who are not in this position, and these people have ample opportunities to defend themselves against expressions they think damage their reputation.

FREEDOM OF EXPRESSION

Despite all these explanations, it can be claimed that the language and style used by the applicant were disturbing for the plaintiff. However, at this point, as consistently adopted in the decisions of the Constitutional Court, it should not be forgotten that freedom of expression, which is one of the essential foundations of a democratic society and constitutes one of the basic conditions necessary for the progress of society and the self-confidence of the individual, is valid not only for information or ideas that are accepted or harmless or contain indifference, but also for those that are offensive, shocking, or disturbing. The Constitutional Court has also accepted in many of its decisions that freedom of expression should be interpreted broadly to allow for exaggeration and even provocation to a certain extent.

"DID NOT ESTABLISH A FAIR BALANCE"

Despite the above findings, the court and the General Assembly of Civil Chambers of the Court of Cassation, without discussing the conditions at the time the expressions subject to the application were used, the context of the expressions, the entirety of the applicant's speech, and the social positions of the applicant and the plaintiff, concluded that some expressions of the applicant about the plaintiff, which were taken out of context from the whole of his speech, constituted an attack on personal rights and decided that the applicant should pay non-pecuniary damages. In this context, the reasons put forward cannot be accepted as relevant and sufficient for the intervention made to the applicant's freedom of expression. As a result, it has been evaluated that it cannot be mentioned that the courts established a fair balance between the applicant's freedom of expression and the plaintiff's right to the protection of honor and reputation.

For the reasons explained, it must be decided that the freedom of expression guaranteed in Article 26 of the Constitution has been violated."