01/03/2022 | Writer: Kerem Dikmen
As it is seen, hate speech towards LGBTI+’s and impunity culture on the application ways, meaning at prosecution, court stages steadily penetrate AYM as well and maybe due to the political atmosphere, they manufacture inadmissibility or no violation exists decisions at the cost of contradicting with themselves.
As it is known, Article 148 of the Constitution (AYM) regarding the duties of the Constitutional Court was amended with law no 5982 and AYM was assigned to give decision regarding the claim of violation of rights that were in the common protection area of the Constitution and ECHR (European Convention on Human Rights). In a personal application made directly to them without applying AYM first, ECHR (European Convention on Human Rights) gave the decision of inadmissibility justifying that not applying AYM is the basis that domestic remedies were not exhausted and with another application it was seen that personal application to AYM was an effective domestic remedy.[1]
AYM, which also assumed the duty of giving decisions regarding personal applications in addition to investigating the conformity of the laws with the constitution, giving decisions about the applications submitted before them as Court of Disputes and judging as Supreme Court, became widely spoken among both individuals and legists upon giving decision after decision regarding final proceedings and decisions[2] that became definite after 23/9/2012 pursuant to Temporary Article 1/8 of law of establishment.
According to the official statistics announced by the Court based on the date September 30th 2021, 335.324 applications were made to the Court so far; 276.307 of the applications were finalized; in 14.911 applications, the decisions with regard to at least one violation of right were given. Regarding as many applications as 246.752, inadmissibility decisions were given.
Let’s point out right away that as we will see on the following pages, a part of these inadmissibility decisions created discussions regarding the substantiality in terms of the applications involving particularly hate speeches.
At this point, the following question mark which is not currently much widespread should be removed beforehand. While the authority of ECtHR is to be a secondary authority and authority to interpret the domestic law is mainly the authority of national courts; as a party state, judicial authorities of Republic of Turkey are obliged to implement the Contract in their jurisdiction areas as it is interpreted by ECtHR in a way that it will also involve AYM. Consequently, the meanings to be attributed to the terminology and contexts will not be different from the meanings that ECtHR have given by interpreting and examining the contract. This is a very significant detail in terms of hate speech.
Hate Speech
There is no definition of hate speech that is approved and agreed upon by all the agents of the international society. However, the situation is different from the point of European Council which is a regional system and this difference is a valid difference for ECHR that was signed within the Council and its protection mechanism ECtHR as well. In other words, while it is also determined by ECtHR that there is no agreement about the definition, the Court describes a minimum basis in terms of defining hate speech with reference to the decisions given by the other organs of the Council. This basis is sufficient enough for AYM to define or even if they do not define, to state a framework regarding which speeches will constitute hate speeches in their decisions. One should take a closer look to this framework which is spread in different texts.
However, one thing should be emphasized before doing this. As it is known, ECHR is an old text as it is an international convention that was announced on November 4, 1950. Despite this, the convention can penetrate the new problem areas arising from the technological, scientific, economic, political, sociological changes of the political European borders and it is because the convention is interpreted by ECtHR dynamically and its living feature is emphasized. Thus, even though not making a definition may be seen as a loss at the beginning, it also involves the possibility to be applied to new individual groups that have the potential to be subjected to hate areas and hate speech, therefore, positive influence of avoiding to make a definition should also be kept in mind.
In AYM decisions regarding hate speech, Recommendation of Committee of Ministers of the Council of Europe dated 30.10.1997 and numbered 97(20) is frequently referred to (Fetullah Gülen [GK], B. No: 2014/12225, 14/7/2015, § 14; Cemal Halis, B. No: 2014/118, 13/7/2016, § 16; Kaos GL Kültürel Araştırma ve Dayanışma Derneği, B. No: 2014/18891, 23/5/2018, § 23; Mehmet Aytaç, B. No: 2017/26514, 11/2/2021, § 19 ) According to the recommendation that is referred to: “the term hate speech shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”
This definition is actually takes place in the enclosure of the recommendation and in root text, there is also the recommendation to member states to review the legislation and practice and to take appropriate steps to combat hate speech.
Although AYM does not particularly make a definition, there are references to other recommendations of Committee of Ministers. One of them is paragraph (6) of the section titled “Hate Speech” which is an enclosure to Recommendation dated 31/3/2010 and numbered (2010)5 with the topic “Measures to combat discrimination on grounds of sexual orientation or gender identity” and it goes as follows as it was mentioned in AYM decisions: “Party states should take appropriate measures to combat all speech types including ones on media and internet that have the effect of provoking, dispersing or encouraging hatred and other discrimination types towards lesbian, gay, bisexual and trans individuals. These kinds of “hate speeches” should be banned and publicly denied. All the measures to be taken within this content should be actualized within the framework of respect to fundamental right to freedom of speech in compliance with Article 10 of the Convention and the ruling case of the Court.”
In one decision, by also referring to decision of the Parliamentary Assembly of the Council of Europe with the topic “Discrimination on the ground of sexual orientation and gender identity” dated 29/4/2010 and numbered 1728(2010), AYM made principle determination with the content “Hate speeches of certain political and religious leaders and other civil society leaders and hate speeches on media and internet became particularly concerning. Assembly should emphasize that their most important duty of the public authorities within this content is not only to apply and efficiently protect the rights mentioned in the human rights documents, but also to avoid speech that would possibly legitimize and feed the intolerance grounded on discrimination and hate. The border between hate speech that provokes crime and freedom of speech will be determined in line with the ruling case of European Court of Human Rights”.[3]
In the decisions of ECtHR, a broader framework of references that also involves the ones listed above draws attention. Let us say immediately that when the fundamental approach that the convention will be applied by the national authorities as it is interpreted by ECtHR is considered, this framework of references that takes place in ECtHR decision is of importance particularly for individuals and their attorneys who will make applications regarding hate speech.
In Beizaras & Levickas vs. Lithuania (41288/15) decision of ECtHR which was translated to Turkish by Kaos GL[4] and which sets a precedent in terms of its content and the result it obtained, ECRI (European Commission against Racism and Intolerance) Report[5][6] also occupies a wide place. In this decision, ECtHR decided that prohibition of the discrimination was violated in regards to right to privacy of the applicants due to the fact that Lithuania authorities could not conduct an efficient investigation of the third parties who have written comments involving hate speeches under the photograph of the applicants after they shared a photograph showing them kissing on their social media account.
In this context, the aforementioned definition constitutes a framework for the applications made to AYM.
Hate Speech in Constitutional Court Decision
Jurisdiction system of Republic of Turkey denies the fact that freedom of speech does not involve hate speech; and complaints made against homophobic/transphobic hate speeches aimed at LGBTI+’s systematically encounter verdicts of non-prosecution on the ground of Article 10 of ECHR that secures freedom of speech. This situation contradicts with the determinations of ECtHR regarding how to interpret the Article 10 of ECHR which was used in applications in two separate occasions that were made against Sweden and against Island. In both decisions of Vejdeland and Others vs. Sweden (1813/07) and Carl Johann Lilliendahl vs. Island (29297/17), ECtHR stated that encouraging hate in general does not take place in the protected area under Article 10 of the convention. For the applicants of Johann Lilliendahl vs. Island decision, although they state that statements that are subject to applications are not required to be removed from Article 10 in terms of Article 17 of the convention, they did not qualify the criminal law mechanisms practices of the state against homophobic hate speeches as the sole violation of freedom of speech.
In Lilliendahl application, the applicant expressed his hatred in the comments he has written as replies to an article written published on the web using words that insult homosexuality like “kynvilla, sexual deviation” and “kynvillingar, sexual deviant” and was fined a penalty by Island authorities[7]. The applicant claimed that his right to freedom of speech in Article 10 of the convention was violated and as it was mentioned, ECtHR gave inadmissibility decision. Vejdeland application on the other hand was regarding punishment of persons who spread homophobic hate speech in high school. As a result of applicants being subjected to penalty fines and limited freedom practices by Swedish authorities due to spreading brochures that involve “Explain your teachers that one of the main reasons of emergence of diseases like HIV and AIDS which are the plagues of our time is homosexuals and homosexuals not being selective about sexual intercourse”, “Tell your teachers that homosexual lobby is trying to diminish the importance and seriousness of pedophilia and ask them their opinions about this sexual deviance becoming legal” sentences, applicants claimed that their right to freedom of speech was violated but ECtHR decided that right to freedom of speech was not violated.[8]
Here, attention should be drawn to the importance of two details. ECtHR excludes expressions that aim to suppress another right in the convention (For example right to privacy, right to live) or expressions that mean encouragement of violence and hatred from the Article 10 of the convention from the very beginning, in other words, state interventions to such expressions are not even interpreted as “intervention” as defined in paragraph 2 of Article 10 of convention, therefore, there will not be needed to apply the three staged test to the intervention in terms of conformity with law. The other detail is that as it is seen in Vejdeland and Others vs. Sweden (1813/07) and Carl Johann Lilliendahl vs. Island (29297/17) decisions, even though they do not reach up to the stated levels, interventions of the states executed by using the criminal law mechanisms to intervene the hate speech can be accepted as legitimate purpose or lawful over the criteria of necessity in democratic society. Such an argument is still not made by AYM. In other words, AYM still did not determine that expression of hate speeches towards LGBTI+’s is excluded from Constitutional protection by mentioning the ill-usage of the right. In other words, there has not been any applicant who made application to the Constitutional Court with the claim that the intervention that was made to his freedom of speech meant intervention to a fundamental right secured by the Constitution due to receiving penalty for expressing hate speech, and received a reply that this did not mean intervention because his actions have been ill-usage of freedom of speech. Because it should be mentioned again that according to prosecution offices in Republic of Turkey, expressions towards LGBTI+’s like deviant[9], faggot[10] are the expressions that do not require interventions that use criminal law mechanisms and are expressions that remain under the freedom of speech; Turkish Republic Criminal Courts of Peace that give decision upon objection to the verdicts of non-prosecution are also agree with the prosecutors. As a result of not operating such criminal law mechanisms against such hate speeches, there is no application to AYM by the people who make hate speeches due to their punishment, so, whether or not “ill-usage of the right” parenthesis that ECtHR opened in their above mentioned decision will be adopted by AYM is still a question mark. However, the inadmissibility decisions given by AYM to the personal applications with the claims of violation of right to privacy that are brought due to complaints regarding hate speeches end up resulting with verdicts of non-prosecution create the impression that ECtHR standard will not be applied.
We should mention that ECtHR reached conclusions in above mentioned two cases in terms hate speeches towards LGBTI+’s and first time in Vejdeland decision; stated that even though the expression does not call for violence or committing crime, it can be evaluated as “provocation of hatred” and stated that it is a freedom of speech used “irresponsibly” within the context of paragraph 2 of Article 10. They emphasized that discrimination towards LGBTI+’s is as serious as hate speech on the grounds of race, origin or color. ( § 55 ) Therefore, as anti-Semitism decision in Pavel Ivanov vs. Russia (35222/04), Garaudy vs. France (65831/01), as anti-Islam decision in Norwood vs. United Kingdom (23131/03), as in Feret vs. Belgium (15615/07), Le Pen vs. France (18788/09) decisions, even though aimed at Islam, the decisions given regarding the interventions made to the speeches aiming to spread hate and create enemies can be accepted as standards in terms of homophobic/transphobic hate speeches.
Hate Speech Towards LGBTI+’s in Constitutional Court Decisions
The fact that AYM adopted the definition of hate speech in the recommendation of Committee of Ministers in parallel with ECtHR decisions was presented above. Looking at the two decisions they gave within the framework of this definition one being the most recent and one being the mostly referred and evaluating the result that is obtained in applications made by LGBTI+’s will be more beneficial.
According to AYM, “expressions with hate motives towards skin color and ethnic origin, gender, gender identity, sexual orientation, disability, political belonging or age groups and refugees, immigrants, foreigner or another disadvantaged group should also be accepted as types of hate speech.” (Fetullah Gülen [GK], B. No: 2014/12225, 14/7/2015, § 40)[11] “Hate speech” definitely involves comments aimed at a certain person or group. Motive of the hate speech on the other hand should be composed of a belonging fact of said person. If expression towards a group or a member of a group encourages hatred, if the so called valid reason of this encouragement is the characteristics attributed to that group and if members of this group are insulted only because they are members of that group, perceived different from general majority, deemed the perpetrator of the negativities in the society or if the abuse of these groups or their members and deprivation of their rights, exclusion they are subjected to, suppression and violence are interpreted as legitimate, idea expression in question can be accepted as it involves hate speech. In hate speech, when a person is selected because they belong to a certain group, in fact, his right to live in peace and sereneness is intervened with regard to all individuals that define the group they belong to (§ 41). In an application that involved the claim that the verdict of non-prosecution to the criminal complaint of the applicant regarding some of the statements towards them in a news were hate speeches was a violation to their right to protection of personal dignity secured under Article 17 of the Constitution, AYM gave the inadmissibility decision after reviewing the news text on the grounds that they were not hate speeches. Since they were not hate speeches, they decided that there was no need to apply criminal law mechanisms and although it was stated that the statements towards the person were by third parties, since criminal law mechanisms are the last resorts and the applicant did not apply other remedies, other remedy options did not exhaust. However, in this decision, AYM made evaluations in terms of applications involving insults with usage of hate speech, provided that distinctive conditions of the incident that was subject to application were considered as well, they stated that prior to the personal application, without choosing law way, only completion of the criminal procedure might be deemed sufficient (§ 47). Which means, according to AYM general assembly, applying criminal law mechanisms against insults using hate speeches is sufficient enough to consume the application ways. Because “with reference to the fact that respect to tolerance and dignity of humans at same level constitutes the fundamentals of a democratic, pluralist society; provided that the “formalities”, “limitations” or “sanctions” will be proportional to the pursued purpose, preventing and even punishing all types of expressions that spread, encourage, glorify or legitimize hatred might be necessary.” (in reference to Sinem Hun decision §36)
In a recent decision, AYM make the Positive Responsibility of the State against Expressions Involving Hate Speech discussion under a separate topic (Mehmet Aytaç, B. No: 2017/26514, 11/2/2021, § 42 – 53).[12] Defining the prevention of the interventions towards honor and dignity between third parties by the state as a positive responsibility, AYM states that contrary situations will mean violation of Article 17 of the Constitution. While underlining that this responsibility should not be understood as responsibility to conduct criminal investigation, it is also emphasized in the same decision that this approach is invalid in applications grounded on hate speech. According to AYM, “due to its positive responsibility against idea expressions that are accepted as hate speeches, the state is responsible to conduct an efficient investigation that will ensure finding and if needed, punishing the persons responsible for any kind of physical and mental attack incident considered within this scope.” (§45) Starting another thread as “Explanations that could be categorized as Hate Speech”, AYM repeated the emphasis as “expressions with hate motives towards skin color and ethnic origin, gender, gender identity, sexual orientation, disability, political belonging or age categories and refugees, immigrants, foreigner or other disadvantaged groups should also be accepted as types of hate speech.” Dramatically, the Court refers to its decision in hate speech application towards LGBTI+’s in this decision. This reference actually lead to repeating the hate speech review in many AYM decisions.
In her personal application, Constitutional Court found the application admissible due to the statement of “Sinem Hun who is registered to Ankara Bar Association and who also advocates the association of the deviants named Kaos GL, applied to prosecution office claiming that “racism crime was committed in the advertisement” but decided that no violation was detected in substantial examination. (Sinem Hun, B. No: 2013/5356, 8/5/2014) According to AYM, specific to this application, particularly considering the hate speech dimension of the expressions, applying criminal law mechanisms seems to be enough. (§32, 33) Because AYM did not interpret the fact that the applicant did not use the law mechanisms as not applying to an efficient application way; they deemed the application admissible and made substantial examination. In other word, by both seeing only application to the criminal mechanisms sufficient and analyzing the expression, AYM confirmed in both ways that the expression was a hate speech. As a result, AYM did not give a violation decision but the reason for not giving a violation decision is not because the expression was not a hate speech, because she is not the acceptor of the hate speech in the concrete case, in the concrete case, the acceptor is the association she advocates for. (§61)
Since the time limit of the incident that was subject of the personal application did not expire, this time, all other application ways were exhausted by the applicant association and the issue is brought to AYM agenda. We have to mention here that we were sure that the applicant association would definitely receive a violation decision. Because the decision which was given by AYM second department and explained above made the substantial examination by deeming the application to criminal law mechanisms enough, with the determination that the speech was hate speech, but violation was not found since the acceptor was the association. However, in the second application, AYM first department made a substantial examination limited solely with whether or not the expression was hate speech and contrary to the determination of the AYM second department in their referred decision as “association of the deviants named Kaos GL” was a hate speech, stated that it was not a hate speech and there was no violation.[13]
While making this decision, AYM made an assessment specific to the word “deviant” and taking only one meaning of the word in Turkish Language Society dictionary as the basis out of two meanings and concluded that the speech was not a hate speech. While making this evaluation, it was seen that AYM also reviewed the comments below the “news” text and according to AYM, target was actually not LGBTI+’s but the Jewish people.
In another decision that was given by the Commission therefore, not published on their web site, for a personal application made to AYM upon a request to restrict access to a broadcast that involves hate speech including using the “deviant” word for Kaos GL association received final rejection, AYM gave inadmissibility decision saying that since the size of the hate speech reached to another level, not using law ways was the reason for inadmissibility. (Kaos GL Cultural Studies and Solidarity Association, B. No: 2018/10605, 25/9/2019) Although the applicant which was the acceptor of “legitimizing immorality”, “leading youth to deviancy” expressions only because they were LGBTI+ rights advocate requested restriction to access to the images used in the news, they applied AYM because they could not achieve anything in application ways. AYM on the other hand gave such decision due to not exhausting application ways saying that “except for the situations where unlawfulness and insubstantiality are highly obvious and immediate recovery of the damage is mandatory, it is understood that other punishment or law ways are the application ways that will provide higher success chance, will be more useful and more efficient. Moreover, the applicant has the opportunity to remove the internet broadcast and have a text to be prepared by themselves to be published on the site as a result of an adversarial lawsuit they will open” (§16). When it is considered that they give inadmissibility decisions with different reasons when an applicant comes after other punishment ways that will be able to provide “higher success chance” were already consumed, it is possible to foresee that every application will be found inadmissible due to different reasons.
As it is seen, hate speech towards LGBTI+’s and impunity culture on the application ways, meaning at prosecution, court stages steadily penetrate AYM as well and maybe due to the political atmosphere, they manufacture inadmissibility or no violation exists decisions at the cost of contradicting with themselves.
AYM’s abovementioned decisions regarding there was no violation shows that the Court has the motivation to draw a line separate from ECtHR. For example while ECtHR refers to the estimation authorities of national authorities or to their authority being secondary, they draw attention to the fact that national judge knows national law and practice better. The most important difference that separates a judge working in Strasbourg Court and having internet access from Constitutional Court is that; AYM judge is in a more convenient situation than ECtHR judge in terms of the knowledge about climate of the country, judicial culture, the context of a term used in Turkish and understanding the meanings of a Turkish word. In this context, AYM judge does not need to look at Turkish Language Association dictionary, he needs to have the ability and determination to make an objective observation to see in which context the word deviant was used. The fact that ECtHR refers to ECRI’s or depending on the subject, Venice Commission’s reports shows that the issue is considered not only in objective manner, but also subjective aspects of the issue are also considered in terms of territorial practice.
Intervening the freedom of speech by using crime law mechanisms of course should be the last resort. In this sense, researching the possibility of hate speech to generate or encourage violence is an understandable necessity. However, while doing this investigation, AYM should make it by evaluating in which situations did this speech occur, with which purpose, by whom, who may be affected and take action. While making the evaluation, they should not fail to notice the fact that in terms of access of LGBTI+’s to rights in Turkey is not at the similar level of Malta (94%), Belgium (74%), Portugal (68%) as per the indicators; with 4% score, second underdeveloped country after Azerbaijan (2%). In other words, even just in terms of saying the word “deviant”, they should take into consideration the fact that the effect of such word would have different impact then it would have in Belgium.[14]
Conclusion
In terms of LGBTI+ rights, as long as this being in two minds situation of AYM with overriding negative side increases with new examples, discussing the Constitutional Court as to whether or not it is an efficient domestic remedy might become a necessity for legists. This being in two minds situation can be clearly seen in giving different decisions in even a completely same situation.
It is observed that in personal applications made against similar dispositions of public authorities, AYM can give inadmissibility decision by using different standards. In a recent decision[15] (İsmail Sarıkabadayı and others, B. No: 2016/23696), regarding the applicants who could not make press statement due to the announced city-wide press statement ban, AYM found consuming the stopping execution stages sufficient enough in terms of criterion of consuming the application ways; and gave decision of violation without even needing to review the final decision of the first degree court.
On the other hand, in the personal application[16] which was made after stopping the execution stage was completed against the governorship decision that indefinitely and generally bans every activity of the applicant including press statement, they gave decision of inadmissibility with mentioning that the degree court cancels the ban decision (Kaos Gay and Lesbian Cultural Studies and Solidarity Association (2), B. No: 2018/10351, 7/9/2021) Underlining these differences clearly in ECtHR applications will make the tendency of AYM that has a very low number of violation decision in terms of discrimination to be discussed at ECtHR level as well.
Still, when the time periods for obtaining a violation decision and reflecting this decision to domestic law are considered, legists should criticize AYM but even in this criticized condition, they have to make an effort to turn into a court that will produce decisions at ECtHR level.
Turkish applicant natural persons and their attorneys should benefit from the country reports as much as possible in individual applications. In this sense, even though they are not current, ECRI reports, reports of local and international human rights institutions that make observations and researches, using thematic reports that give places specifically to data about hate speech as the grounds for personal applications; gains importance particularly in terms of the discussions to be made at ECtHR level.
The fact that eliminating through compensation does not have a deterrent effect can be understood from the fact that despite[17] the compensation decisions received by Kaos GL, instead of decreasing, hate publishing targeting Kaos GL increasingly continues.[18] Still, showing AYM that the received compensation decisions do not decrease the hate speech intensity in the following process through personal applications brought to AYM by opening pilot suits for damages can be adopted in order to present AYM the inefficiency of the mechanism of eliminating through law that they point out and showing to which need they correspond. However, even in this situation, it should not be overlooked that operating the criminal law mechanisms against hate speech is a necessity for ECHR and from time to time, an obligation; and it should not be forgotten that opening suits for damages is not an obstacle before usage of complaint rights.
Translation: Vahap Karakuş
*This article was produced with the financial support of the European Union. Its contents are the sole responsibility of Kaos GL Association and do not necessarily reflect the views of the European Union.
Tags: human rights
