Dülger Law Office/Publications/Commentary
Review of the Constitutional Court's Decision on the Violation of Freedom of Expression Arising from the Failure to Recognise the Lawyer's Immunity of Defence
(Avukatın Savunma Dokunulmazlığının Tanınmamasından Kaynaklanan İfade Özgürlüğünün İhlaline İlişkin Anayasa Mahkemesi Kararının İncelenmesi)
Introduction
This work was written in Turkish. The summary on this page is a translation; the citation gives the original title in parentheses.
The immunity of claim and defence is recognised, and constitutionally guaranteed as a right, in Article 36 of the Constitution, headed “Freedom to Claim Rights”, in the following words: “Everyone has the right, by making use of legitimate means and procedures, to bring claims and to defend themselves as plaintiff or defendant before the judicial authorities, and the right to a fair trial.” The exercise of the right of defence, and in this sense the securing of the freedom to claim rights, depends on this right being immune from any threat of criminal or administrative sanction. The defence must be inviolable, so that individuals can freely exercise and pursue their rights without any fear or hesitation.
In the offence of “Insult”, which is found in Chapter Eight of the Turkish Criminal Code (TCK) No. 5237, headed “Offences against Honour”, the immunity of claim and defence is recognised by Article 128 as a ground of justification. Under that article, no penalty is imposed on persons making a claim or a defence (subjective condition) where, before judicial or administrative authorities (objective condition: the place of the insult), they set out material facts amounting to a concrete imputation against persons or make negative assessments (objective condition: the form of the insult). For this, however, the imputations and assessments must be based on real and concrete facts and must be connected with the dispute (objective condition: proportionality).