Nagehan Alçı had filed a lawsuit: Constitutional Court's 'Mine Kırıkkanat' ruling

Journalist Nagehan Alçı's program, which she hosted on a television channel in 2013, was taken off the air, after which an X user made a post stating, "My brother-in-law slept with me during the day, should Fidan stay in the evenings? Nothing she does works anyway!" Cumhuriyet Newspaper writer Mine Kırıkkanat quoted the post and used the phrase, "The fresh 'kaşar's' program has been taken off the air."

According to the report by ANKA; following Nagehan Alçı's complaint, the Istanbul 36th Criminal Court of First Instance sentenced Mine Kırıkkanat to a judicial fine of 2,610 TL for the crime of "public defamation" in 2014. Following the sentence, writer Mine Kırıkkanat took the matter to the Constitutional Court (AYM). In her application, Kırıkkanat argued that the post in question was critical in nature, stating that the term "kaşar" was used in the sense of "'kaşarlanmak' (to become hardened/cynical), meaning to gain a lot of experience or to become accustomed to an unpleasant action or job to the point of no longer feeling sorrow from it," and that she was criticizing Alçı's program with the term "kaşarlanmak," but that the court did not provide a justification and violated freedom of expression.

The High Court's reasoned decision evaluating the application was published in today's issue of the Official Gazette. The decision stated the following:

"The Constitutional Court has explained many times before what should be understood from an expression that complies with the requirements of a democratic social order. For an intervention in fundamental rights and freedoms to be accepted as complying with the requirements of a democratic social order, it must meet a compelling social need and be a proportionate intervention. The restriction on freedom of expression must be aimed at meeting a compelling social need in a democratic society and must be of an exceptional nature. For the measure constituting the intervention to be accepted as meeting a compelling social need, it must be suitable for achieving the purpose, and must manifest itself as the last resort that can be applied and the mildest measure that can be taken. An intervention that does not help achieve the purpose or is manifestly heavy compared to the intended purpose cannot be said to meet a compelling social need.

Proportionality, on the other hand, points to the absence of an excessive imbalance between the purpose intended to be achieved by the restriction and the restrictive measure applied. When intervening in the expression and dissemination of ideas, bodies exercising public power must demonstrate, based on concrete facts, the existence of an interest that needs to be protected that outweighs the benefit derived from the exercise of freedom of expression, and the existence of mechanisms that balance the burden placed on the individual."

'FREEDOM OF EXPRESSION IS SUBJECT TO EXCEPTIONS THAT MUST BE INTERPRETED STRICTLY'

"However, freedom of expression is subject to exceptions that must be interpreted strictly, and any need for restriction must be established in a convincing manner. According to the second paragraph of Article 26 of the Constitution, one of the reasons for restricting freedom of expression and, in this context, one of the duties and responsibilities that those who exercise freedom of expression must comply with, is the protection of the reputation or rights of others. An individual's honor and reputation form a part of their personal identity and moral integrity and benefit from the protection of the first paragraph of Article 17 of the Constitution. The state is under an obligation not to arbitrarily interfere with an individual's honor and reputation and to prevent attacks by third parties.

In its previous decisions, the Constitutional Court has evaluated whether a fair balance has been observed between these two rights. This is not an abstract evaluation. In order to strike a balance between conflicting rights, it is necessary to evaluate the type of expressions used, their capacity to contribute to public debate, the nature and scope of the restrictions on the expressions, by whom the expressions were uttered, to whom they were directed, the degree of fame of the parties, the previous behavior of the relevant persons, and the weight of the rights held by the public and other persons in the face of the expressions used.

The Chief Public Prosecutor's Office filed a public lawsuit against the applicant on the grounds that she made numerous posts containing defamation regarding the complainant on social media platforms. The court, as a result of the trial, decided to punish the applicant for the crime of defamation, accepting only that the post in the form of 'The fresh 'kaşar's' program has been taken off the air' was made by the applicant.

The applicant claims that the term 'kaşar' in the post subject to the complaint was used on the basis of the term 'kaşarlanmak,' meaning to gain a lot of experience with an action or to become accustomed to an unpleasant action or job to the point of no longer feeling sorrow from it, and that she was criticizing the program made by the complainant with the expression in question. However, it has been observed that the court did not evaluate in what sense the expression subject to the complaint in the applicant's post was used and in what way it offended the complainant. The court merely determined that the expression subject to the complaint was shared by the applicant and that the complaint was made within the legal time limit; it convicted the applicant of the crime of defamation without discussing whether there was any hostility between the applicant and the complainant, the reason for the expression subject to the application being uttered, whether there was a background to the word used, and whether the complainant should have endured the words directed at her due to her previous behavior. The court did not attempt to strike a balance between the applicant's freedom of expression and the complainant's right to the protection of honor and reputation by looking at the entirety of the events between the parties and the post made; it accepted that the expression in question constituted the crime of defamation without making an evaluation.

As a result, when evaluated together with the above explanations, the court of first instance did not evaluate the expressions used within the integrity of the event without taking them out of context when making its decision, and could not demonstrate that the applicant's conviction met a compelling need. The justification put forward by the court cannot be accepted as relevant and sufficient for the intervention made in the applicant's right to freedom of expression.

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

10 THOUSAND LIRA COMPENSATION TO KIRIKKANAT

The Constitutional Court unanimously decided that Mine Kırıkkanat's freedom of expression had been violated. The Constitutional Court sent the file to the Istanbul 36th Criminal Court of First Instance for a retrial and ordered that 10 thousand lira in compensation be paid to Mine Kırıkkanat.

News Source: 12punto