Freedom of Thought and Expression in Turkish Law

What is the Right to Freedom of Thought and Expression?

Freedom of thought and expression is defined under Article 26 of the Constitution, titled “Freedom of Expression and Dissemination of Thought”, as follows:

“Everyone has the right to express and disseminate their thoughts and opinions by speech, in writing, in pictures or through other means, individually or collectively. This freedom includes the liberty to receive or impart information or ideas without interference from official authorities. The provision of this paragraph shall not preclude the imposition of a system of licensing for radio, television, cinema, or similar means of publication. The exercise of these freedoms may be restricted for the purposes of protecting national security, public order, public safety, the fundamental characteristics of the Republic, and the indivisible integrity of the State with its territory and nation; preventing crime, punishing offenders, withholding information duly classified as a State secret, protecting the reputation or rights of others, private or family life, or professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.”

According to the legal provision, freedom of thought and expression is a liberty that guarantees individuals will not be prosecuted or condemned for their thoughts and opinions, and that they may share these thoughts through various means (such as speech, writing, or images).

Frequently Asked Questions

1.What Are the Differences Between Insult and Freedom of Thought and Expression?

Insult is a criminal offense regulated under Article 125 of the Turkish Penal Code (TPC), which prescribes a prison sentence of between 3 months and 2 years or a judicial fine for the offender. In contrast, freedom of thought and expression is a constitutional guarantee provided under Article 26 of the Constitution, as mentioned above.

It should be understood that expressions which violate the rights of others, promote hatred, or incite discrimination or violence are not protected under the law. Therefore, insult does not fall within the scope of freedom of expression and constitutes a criminal offense. What constitutes an insult and whether it qualifies as a crime will be determined by the judge on a case-by-case basis.

2.Is the Violation of Freedom of Thought and Expression a Crime?

The prevention of the exercise of freedom of belief, thought, and opinion is regulated in Article 115 of the Turkish Penal Code as follows:

“(1) A person who uses force or threats to compel someone to disclose or change their religious, political, social, or philosophical beliefs, thoughts, or opinions, or to prevent them from disclosing or spreading them, shall be sentenced to imprisonment for a term of one to three years.

(2) If the fulfillment of religious duties or the individual or collective practice of religious worship or ceremonies is prevented by the use of force or threats, or any other unlawful act, the offender shall be sentenced in accordance with the first paragraph.

(3) A person who uses force or threats, or any other unlawful act, to intervene in or force changes to a person’s lifestyle choices based on their beliefs, thoughts, or opinions shall be punished according to the first paragraph.”

3.What Legal Recourse Can Be Taken in Case of Violation of Freedom of Thought and Expression?

Individuals directly affected by the violation of freedom of thought and expression can appeal to both the Constitutional Court and (after exhausting all domestic legal remedies) the European Court of Human Rights.

An individual application to the Constitutional Court must be made within 30 days from the date the violation is learned. It can be made by the applicant themselves, the applicant’s legal representative, or the applicant’s lawyer. In this regard, parties may need a criminal lawyer for the relevant application, such as a criminal lawyer in Antalya.

Additionally, it is observed that an individual application to the Constitutional Court is subject to four conditions, which are:

1. 1. The alleged violated right must be under common protection in the Constitution and the European Convention on Human Rights.
2. 2. The violation must have occurred through institutions or individuals exercising public power.
3. 3. Ordinary legal remedies related to the alleged violated right must have been exhausted.
4. 4. The claim of violation must have been raised in the trials and ordinary legal remedies (appeal, review, and cassation).

The Constitutional Court’s (AYM) Other Precedent Rulings Regarding Freedom of Expression

“Freedom of expression means the individual’s right to freely access news and information, to not be condemned for their thoughts and opinions, and to be able to express, explain, defend, convey, and disseminate them, either alone or in association with others, through various means.

Any limitation on freedom of expression must be aimed at meeting an imperative societal need in a democratic society and must be exceptional in nature. For the measure that constitutes the intervention to be accepted as meeting a necessary societal need, it must be suitable for achieving the objective, be the last resort available, and represent the least restrictive measure that can be taken. An intervention that is not helpful in achieving the intended goal or that is clearly disproportionate compared to the goal cannot be considered as addressing a necessary societal need.

An intervention on freedom of expression that does not meet a necessary societal need or, although meeting such a need, is not proportional, cannot be regarded as an intervention in accordance with the requirements of a democratic society.” (AYM)

1. “Propaganda of terrorism aims to spread the belief that violence is a valid and effective method within society and to ensure the entrenchment of ideas and opinions that lead to terrorist acts. Achieving this goal can only be possible through specific efforts and time investment. Propaganda plays a significant role in the process of gradually becoming a sympathizer, then a supporter, and eventually a member of terrorist organizations. Moreover, the PKK terrorist organization, which is the subject of the application, is no longer an organization whose danger is hypothetical or non-existent. The PKK terrorist organization, at the time of the events and even now, is the planner and executor of severe violent movements. Therefore, the PKK presents a very intense, serious, and tangible threat from a societal perspective.” (AYM, Application No. 2015/12115, Decision dated 08.06.2021)
2. “… it is clear that a prison sentence for a press offense is incompatible with the journalist’s freedom of expression and press freedom. Such a sentence can only be acceptable in exceptional circumstances. Even if it is accepted that a person who has suffered material or moral damage as a result of a publication can file at least a civil lawsuit against the journalist who published false information, in cases of classic defamation, like in the present application, a prison sentence that is quite severe should inevitably be seen as having a deterrent effect…” (AYM, Application No. 2014/2983, Decision dated 15.02.2017)
3. “In the case related to the application, a written document in the form of a magazine, which included statements by the leaders of the PKK terrorist organization, as well as propaganda for the organization and expressions praising and glorifying the organization’s members, was not given to the applicant, who was detained on the charge of committing a terrorism offense, on the grounds that it would hinder the objectives of crime prevention and the rehabilitation of the convict. The objections made against the decision of the Education Board were evaluated by the Execution Court and the Heavy Penal Court, which rejected the objection with the same reasoning.” (AYM, Application No. 2015/18932, Decision dated 22.03.2018)
4. “The applicant, who stated that the slogan on which the conviction was based was unclear, argued that being punished for a slogan that did not constitute propaganda for the organization violated their freedom of expression, the right to organize meetings and demonstrations, and the right to a fair trial under Article 38 of the Constitution. In its opinion, the Ministry of Justice (the Ministry) first stated that it was necessary to evaluate whether the claim of violation fell within the scope of a legal remedy complaint. Furthermore, when assessing whether the administrative fine imposed on the applicant for chanting the slogan ‘Biji Serok Apo’ was necessary in a democratic society, it was noted that the Constitutional Court’s decisions should be taken into account, stating that words that legitimize, praise, or encourage terrorism cannot be considered within the scope of freedom of expression. In response to the Ministry’s opinion, the applicant reiterated the explanations in the individual application form.” (AYM, Application No. 2022/21108, Decision dated 10.07.2024)
5. “The applicant, a theater artist and writer, is a columnist for a news portal broadcasting on the internet and a member of the Communist Party of Turkey. On March 6, 2016, the applicant tweeted from their Twitter account, ‘The partner of [R.Z.] in Iran [B.Z.] is being sentenced to death, and you still refuse to get out of this scoundrel’s bed.’ On March 11, 2016, they shared another tweet stating, ‘[R.Z.] has put all of his assets in Turkey up for sale. Whoever buys them is dishonorable, a thief, and a plunderer, as are those facilitating the transaction.’ The person at the center of the tweets, R.Z., is an Iranian businessman who holds both Iranian and Turkish citizenship.” (AYM, Application No. 2020/13392, Decision dated 05.09.2023)
6. “The applicant, a lawyer working in the field of human rights, is a regular columnist for an internet news site and has a certain level of recognition in society. The applicant, who claims to have participated in many international events abroad, had an arrest warrant issued against them due to an opinion they shared on their social media account. They were detained while attempting to leave the country, and after their statement was taken, they were released with a travel ban imposed on them. In the context of the criminal investigation initiated due to the social media post, the imposition of a travel ban and, consequently, the inability to participate in a program at the United Nations, when evaluated in light of the entire circumstances, led to the conclusion that it constituted an intervention in the freedom of expression protected under Article 26 of the Constitution.” (AYM, Application No. 2019/39847, Decision dated 25.01.2024)
7. “The first issue to be considered in the news related to the application is the type of language used. Although the applicants used harsh expressions towards the complainant’s reputation, it is understood that the complainant’s main grievance is the use of the term “parallelist.” The term “parallelist,” which associates the complainant with the FETÖ (parallel structure), should be considered as a harsh expression, and it can be seen as offensive, shocking, or disturbing. However, freedom of expression protects the expression itself, regardless of whether it is rational or emotional, well-founded or unfounded, or how others perceive it as useful or harmful, valuable or worthless. Even if the expression is polemical or hurtful, it does not exclude it from the scope of protection (for similar evaluations, see Ali Gürbüz and Hasan Bayar, B. No: 2013/568, 24/6/2015, § 42; Önder Balıkçı, § 40). Therefore, the expressions used in the context of the application should be examined in light of the entire article, especially considering the position of the targeted individual and the way the expression was made.” (AYM, Application No. 2016/73556, Decision dated 23.10.2019)
8. “The first issue to be considered in the news related to the application is the type of language used. Although the applicants used harsh expressions towards the complainant’s reputation, it is understood that the complainant’s main grievance is the use of the term “parallelist.” The term “parallelist,” which associates the complainant with the FETÖ (parallel structure), should be considered as a harsh expression, and it can be seen as offensive, shocking, or disturbing. However, freedom of expression protects the expression itself, regardless of whether it is rational or emotional, well-founded or unfounded, or how others perceive it as useful or harmful, valuable or worthless. Even if the expression is polemical or hurtful, it does not exclude it from the scope of protection (for similar evaluations, see Ali Gürbüz and Hasan Bayar, B. No: 2013/568, 24/6/2015, § 42; Önder Balıkçı, § 40). Therefore, the expressions used in the context of the application should be examined in light of the entire article, especially considering the position of the targeted individual and the way the expression was made.” (AYM, Application No. 2016/73556, Decision dated 23.10.2019)
9. “In the objection petition written by the applicant regarding the first report, the expressions “partisanship, apologist, hitman, unserious, liar, accuser” were used, and as a result, the applicant’s employment contract was terminated on 8/7/2020 for just cause due to violation of ethics and good faith principles. The applicant filed a lawsuit against the employer, requesting reinstatement, stating that the termination was unjust and invalid.” (AYM, Application No. 2022/58456, Decision dated 18.04.2024)
10. “The applicant is the Member of Parliament for the Republican People’s Party (CHP) from Kocaeli at the time of the incident. In early August 2017, the applicant attended a press conference organized by his party in the Gebze district and gave a speech there. After making assessments about his party’s internal workings, the municipality’s actions, and the local elections, the applicant stated that “the political wing of FETÖ has never been brought up” and used the following expressions in his speech: “… They are all FETÖ members, the AKP General Chairman (…), the Mayor of Kocaeli (…), Deputy Prime Minister Fikri Işık, and the Mayor of Gebze (…) are also FETÖ members. Remember the Turkish Language Olympiads. When we say FETÖ members, we are not referring to those who took up arms on July 15th and were coup plotters. We are referring to the opportunities they provided and their collaborations. The turning point is not December 17-25. December 17-25 is Turkey’s biggest theft. FETÖ will not end without them being held accountable. We do not forgive them. We will continue to be in the streets. We will continue to bring up the issues of Kocaeli. 2019 will be a turning point for Turkey. We need to get rid of these people quickly. Because Turkey is suffering.” (AYM, Application No. 2019/2593, Decision dated 15.03.2022)”
11. “The applicant stated that he holds both the titles of doctor and academician, that gestational diabetes and diabetes are serious risk factors in cardiovascular diseases, and that the issue falls within his area of expertise. Therefore, he opposed the glucose tolerance test during pregnancy and explained this in simple language and slogans on various platforms. The applicant argued that he shared his knowledge with the public to protect public health, and that the claim about him showing books for commercial purposes was incorrect, as he did not examine pregnant women gynecologically nor invited patients to himself for such purposes. He also stated that the information obtained from the book could be used for prevention, and as a physician, it is both his duty and responsibility to share his research and knowledge with the public. He asserted that such statements, which emphasize preventive medicine, fall within the scope of freedom of expression. Furthermore, the applicant argued that the decision of the first-instance court contained clear arbitrariness and a gross error of judgment, that the claims, events, and facts were not sufficiently explained in the reasoned decision, that his claims were not taken into account, and that there was no fair and impartial trial, thus violating his right to a fair trial.” (AYM, Application No. 2018/6707, Decision dated 31.03.2022)

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