15 Oct IT RELATES TO THE CLAIM THAT THE PROVISION OF COMPENSATION AGAINST THEM DUE TO A NEWS STORY PUBLISHED IN A NATIONAL NEWSPAPER VIOLATES THE APPLICANTS’ FREEDOMS OF EXPRESSION AND THE PRESS
Official Gazette: 09.07.2021
OG NO: 31536
CHAPTER ONE
decision
APPLICATION OF HAJI Yakisikli AND OTHERS
Application Number: 2019/13768
Date of Decision: 26/5/2021
Chairman: Hasan Tahsin GOKCAN
Members: Hicabi DURSUN
Youssef Sevki HAKYEMEZ
Selahaddin MENTES
Irfan SAPLING
Rapporteur: Gulsum Gizem GURSOY
Applicants: 1. Haji Yakisikli
2. Ramadan Fatih UGURLU
3. Ugurlu Journalism Press Publishing Printing Advertising Limited Company
Deputy Applicants: At. Ali PACCI
I. SUBJECT OF THE APPLICATION
1. The application relates to the claim that the provision of compensation against them due to a news story published in a national newspaper violates the applicants’ freedoms of expression and the press.
II. APPLICATION PROCESS
2. The application was submitted on 16/4/2019.
3. The application was submitted to the Commission after a preliminary administrative review of october application form and its annexes.
4. It has been decided that the Department will conduct an admissibility review of the application by the Commission.
5. It was decided by the Head of the Department that the admissibility and substantive examination of the application should be carried out together.
6. A sample of the application documents has been sent to the Ministry of Justice (Ministry) for information. The Ministry has expressed its opinion. The applicants made a statement against the opinion of the Ministry.
III. EVENTS AND FACTS
7. The events as expressed in the application form and its annexes are as follows in October summary:
8. in May Jul 2010, six international non-governmental organizations (IHH Humanitarian Relief Foundation, Free Gaza Movement, European Campaign to End the Siege on Gaza, Ship to Gaza Greece, Ship to Gaza Sweden and The International Committee to Lift the Siege on Gaza) created a relief fleet to deliver humanitarian aid provided by donations collected worldwide to Gaza. The humanitarian aid flotilla, Germany, Kuwait, Israel, Ireland, Sweden, Greece, Cyprus, Morocco, Yemen, Egypt, and Algeria, such as from 37 countries, and between them no more than 15 members, over 60 international press, a member of artists, including activist activists to receive the Nobel Peace Prize has been 750. The flotilla, called the Gaza Freedom Flotilla, was blocked by Israeli military forces on 31/5/2010 and the flotilla was interfered with with by weapons. During the intervention and the subsequent process, 10 humanitarian volunteers lost their lives and 56 of the volunteers were injured.
9. The applicants are the reporter, the owner and the publisher of the newspaper who make the news in Yeni Akit newspaper (newspaper), respectively. Plaintiff B. In the copy of the newspaper dated 2/10/2013.C.He.”They Made the Martyr’s Daughter Cry! an article titled “has been written. The subject of the application is the B mentioned in the news.B.A.the father of C.A. As a result of the fire opened by Israeli soldiers on the ship called ”Mavi Marmara”, he was shot and killed. The relevant part of the article is as follows:
“The government headscarves in schools and other state institutions as work and continued efforts to bring freedom to those who want to read some naysayers to hatred and hostility toward my kusarca just to satisfy their egos headscarves they do. Here is another new example… that Zionist murderers martyred on the ship Mavi Marmara (C.A.nin), 10 in Iskenderun. Her daughter, who is studying in the class [B.A.A], she was subjected to oppression and persecution at her school, where she went in a hijab.
…
Martyr [C.A.n] Iskenderun p.K.A.He. High School 10. His daughter, who was educated in the classroom [B.A.A.n] that she was subjected to threats by school teachers and her environment on the grounds that she came to school wearing a headscarf; from teachers [B.C.D], [N.G] and [A.S.it turned out that nin] was subjected to pressure.
F. Teacher; There is No Free will in National Education!!!
10. The class student [B.A.A.n], it was reported that he covered his head with his free will without anyone’s suggestion and wanted to continue his education in accordance with his faith, while the pressure of the teachers caused reactions. [B.A.A.] ‘Some of our teachers didn’t say anything when we entered the classes wearing headscarves, which is what should have happened. F, however, His Teacher [B.C.O] After class, he called me and said, ‘Is there a law?’ he asked. After that, I said that no law, the Constitution prohibits the hijab, and as a matter of faith, this is how I want to enter classes with my free will. After that, the teacher said to me, “There is no free will in National Education,” and then he opened my head and asked me to come like that,”he said.
Stating that she had also been subjected to humiliation by her other teachers with the words ‘what a disguise this is’ directed at her headscarf [B.A.A.], when he mentioned free will, he stated that his teachers ignored it.
[N.A]; They will Use Students and Create ODTO-Like Events
Martyr C.A.B. s wife andthe mother of [n.A] on the other hand, he asked the authorities for help, saying that his daughter had received numerous threats. [N.A] said, ‘They’re trying to stop my daughter from living out her faith. We have heard from a circle of friends that some teachers will not interfere with my daughter’s veil, but will use the students. They say they’re going to beat my daughter up after school. My daughter’s educational life and her life’s safety are at stake. They will give placards to the students and protest as they did at METU events.
School Principal: There Are Teachers Who Offend
Iskenderun P., whom we interviewed by phone.K.A.He. The principal of the high School [P.E], parents decried that they were stuck between teachers and regulation.
[P.E], ‘Some teachers B.he took it all the way to the canteen. We told them not to do such things. At the moment we have reported the incident to the authorities, we are waiting for a recommendation from the Ministry of Education on what to do,’ he said. We said that we had a feeling that some teachers at the school would create METU-style events using students [p.E] ‘We certainly do not allow such actions. Let them inform us who will take such actions, the necessary is done with the governor’s office and the security,’he said.
Iskenderun District Director of National Education [M.K.] de ‘We will do what is necessary if our student and parent apply. It is impossible not to take our students to classes. They can apply to us,’ he said.
Iskenderun E. Deputy chairman of the Trade Union [Y.K] said that they will stand on the incident and will carry out the necessary legal, humanitarian monitoring, and will pass the matter on to the necessary authorities.
[B.Y]: We Stand Behind Our Daughter
The IHH Chairman [B.[Y]he said, ‘No one can threaten a student. Together with our foundation, we stand behind our daughter to the end. Those who threaten him are considered to have threatened us, and we return their threatening words to them. Turkey should get rid of this prohibitionist understanding with all its cells now. Both we and our friends in our Iskenderun branch will give our daughter all kinds of support,”he said.”
10. According to the relevant news, the Provincial Directorate of National Education (Directorate) of the Hatay Governorate has launched a review of the people named in the news. As a result of the examination, by the decision of the Directorate dated 11/10/2013, it was decided that no action was required due to the fact that the allegations about the accused people in the newspaper news subject to the examination were not dismissed.
11. B.C.He. on 5/11/2013, he requested that the text of the retraction be published in relation to the news subject to the application. Iskenderun 1. By the decision of the Magistrate’s Court dated 7/11/2013, it was decided to publish the text of the refutation. Despite the decision, the applicants did not publish the text of the retraction and a lawsuit was filed against them for this reason, but the lawsuit was dropped due to the statute of limitations. B.C.He.the text requested for publication is as follows:
“Our school is a school affiliated to the Ministry of National Education and the management affairs of the school are regulated by various regulations. In the Regulation on the Disguise of School Students Affiliated to the Ministry of National Education published in the official gazette No. 28480 on November 27, 2012, 4. In jul e of the article e) The head is open in the school, the hair is clean and unpainted, it cannot wear makeup, it cannot grow a mustache and beard. Its provision is contained. This regulation has not been written by me. It is the Ministry of Education that writes this regulation. This regulation forces students to open their heads. It is again stated by the Ministry of National Education that those who act contrary to this will be punished with disciplinary action. The duty of the teacher is to inform the school administration about the implementation of the regulation. I also have no other duty or authority than to notify the administration of all students who do not comply with the rules. There has been no case of my student being expelled from class or insulted about the mentioned news in our school. In addition, the fact that my name is being shown as a target also threatens my life safety. The news published in the newspaper is unfounded and false news.”
12. B.C.O, the applicant has filed a criminal complaint against Hacı Hacı with the request that he be punished for defamation. Iskenderun Public Prosecutor’s Office decided on 2/2/2014 that there is no room for prosecution against Hacı Hanım on the grounds that the content of the news is a requirement of freedom of the press and the right to report, that its content is current and in the public interest, that there are no elements containing direct insults and / or other crimes against the client.
13. B.C.He. stating that their personality rights were damaged due to the related news, the applicants filed a 6,000 TL non-pecuniary compensation lawsuit against the applicants.
14. Iskenderun 2, who conducted the trial. N., who was heard as a witness at the hearing of the Court of First Instance (Court) dated 11/5/2017.A. in summary, he stated:
“…I [B.B.A.s] I’m the mother of. My daughter is 10. I decided to cover my head in class. He had hesitations before covering up, he had thoughts about whether I would be accepted to school. At that time, he saw some news made in the Akit newspaper. A number of schools in Kayseri saw that students were not accepted or unable to enter. At that time, Hacı Hunkman, who was a reporter for Akit newspaper in Kayseri, reached him by phone and asked if he could be taken to school if he covered his head. He said that I will not be any obstacle for them, in many schools, students can enter the school with their heads closed. [B.B.A] he also covered his head and went to school. Three of the three teachers who were mentioned in the newspaper on the first day she went to school also reacted. The plaintiff made sentences to my daughter such as ‘you can’t enter here, the record is kept’ and scolded my daughter by shouting and shouting. Dozens of students gathered in the hallway witnessed this and put severe pressure on my daughter. Then my daughter met with the reporter Haji Handsome again, she herself called the school principal and the school principal confirmed this situation and stated that some teachers were putting pressure on the child. In short, in order for my daughter to enter the school more comfortably and to remove the pressure on her, we transferred this news to the newspaper without violating anyone’s personal rights and without slandering as it was. The director of the school also confirmed these events at that time. After that, there was a story in the newspaper…”
15. B. To which the court has listened by way of instruction.A.A. at the hearing dated 21/9/2017, he made the following statement in summary:
” …I am the one who reported the news to the handsome Pilgrim who made the news in the New Testament newspaper, [B.C.D] P.K.A.He. In his High School F. He was our teacher, 3 of September 2013. or 4. it was during the week, I read on social media and elsewhere that students were entering class with their headscarves on. 10 At the time. I was a grader. I went to school wearing my hijab on a Friday. The first lesson was a lesson in religious culture. The teacher of this lesson did not say anything, the next lesson is F. the plaintiff [B.C.O] entered the lesson and didn’t say anything until the end of the lesson. At the end of the lesson, he said, ‘Will you come with me,’ and we went out together. He told me at the intersection of the upstairs stairs that he couldn’t go to class in this outfit. I also said that there is no prohibitive consideration for students entering in this way elsewhere. She herself told me to show her if there is a law or regulation that releases the hijab. So I told him that I would enter the class in this way of my own free will, and that no laws or regulations prevented it. He left me saying he knew what I was going to do with it. Other students gathered at the time of the incident said that what I was doing was wrong if there was no regulation, and I also told them that I was not in a position to prevent them from entering the class in this way. After that, there was an outrage among the students who were against the headscarf at school, they came to school in shorts and chains, said it was our faith and began to express themselves in this way. So I contacted Haji Handsome in this way and thought that a lot of girls in Iskenderun wanted to go to school with a headscarf, that it would be in the public interest to make news in this way [B.C.I informed Dec about what happened between me and O] and told Hacı Hunkman about the matters I had told him at the court. If you were to talk to the teacher put me in a room, they weren’t going to wear my hijab responsive indignation against me react this way students would not have an inspector entry in the newspaper the news release after school, then school ended, everyone in the whole school in Iskenderun girls with hijab gets dressed and began to enter the courses…”
16. The court decided to dismiss the case with its decision dated 12/12/2017. The relevant part of the reasoned decision is as follows:
“In cases where freedom of the press and personality values are confronted: it is inconceivable that the legal order will protect two conflicting values at the same time. It will be accepted that one of these two values should be superior to the other, and as a result, it is appropriate that it remains unprotected at that time and for that moment in the face of the benefit that the less superior benefit should be superior to the more. The main criterion for this is the public interest. Both the written and visual press should observe the decency of the topic, the existence of social interest, the topicality of the issue, and also maintain the balance between my essence when delivering the news, especially if the publication is real, there is a public interest, while fulfilling this function. Again, the press should publish within objective limits. Hasın should also not be held responsible for the publication of events that existed at that moment and in sight and were later found to be untrue.
When the news and witness statements of the subject of the case are considered as a whole; as a matter of fact, it is understood from both administrative investigations and judicial investigations that the news is transmitted to the public within the framework of the apparent reality of a judicial case, the news is current and remains within the scope of freedom of the press, our court has heard as a witness (B.B.A.in the face of the reasons explained by the understanding that it is fixed that he was removed from the class and that a non-prosecution decision was also made in the judicial investigation filed against the defendants upon the plaintiff’s complaint in this regard, since it is understood that the balance of conflicting benefits has not been disturbed against the plaintiff and the reason for compliance with the law has been realized from the point of view of the defendants, the plaintiff’s request has been rejected.”
17. Adana Regional Court of Justice 3 after the decision was taken to the court of appeal. With its decision dated 26/2/2019, the Legal Department decided to partially accept the case by removing the decision of the court of cassation from the basis and to jointly and severally compensate the applicants for a total of TL 5,000. The relevant part of the reasoned decision is as follows:
“… considering the integrity of the news, the fact that the plaintiff’s photo is primarily used in the news content, some unknowns in the news content are hostile to those who are covered by their grudges and hatreds to satisfy their egos. Here is another new example …’ statements are used, these statements are not covered by the right to criticism and freedom of expression, by adding a photo of the plaintiff, a perception is created that contradicts the truth, as if the plaintiff was hostile to religion, hostile to the hijab, and when the news Content is examined, it is out of the case [B.B.A.in their statements, the plaintiff only raised questions about why she entered the class with a hijab, except that there was no situation such as not taking the student to class, not admitting him to the class, again, it is understood that the student used in the news content was pressured or that there were no incidents in which threats were made to the student in this regard. As explained above, when the press makes a news story, it is necessary that the news in question be in accordance with the apparent truth. However, given the integrity of the news, it is understood that the news in question is not in accordance with the apparent reality, and in this context, making news in this way is an attack on the plaintiff’s personality rights, and it was decided to partially accept the plaintiff’s case …”
18. The final decision was notified to the applicants on 18/3/2019.
19. Applicants submitted an individual application on 16/4/2019.
IV. RELATED LAW
20. 49 of the Turkish Code of Obligations dated 11/1/2011 and numbered 6098, entitled “Liability”. its substance is as follows:
“The one who harms someone else with a defective and unlawful act is obliged to remedy this damage.
Even if there is no rule of law prohibiting the damaging act, the one who intentionally harms someone else with an immoral act is also obliged to remedy this damage. ”
V. REVIEW AND JUSTIFICATION
21. At the meeting held by the court on 26/5/2021, the application was examined and considered as necessary:
A. The Applicants’ Claims and the Opinion of the Ministry
22. Applicants; B.A.A. and his mother is N.A.as stated in their statements, the news subject to the application is in accordance with the apparent reality, although the plaintiff does not have an administrative duty B.A.A.in violation of the law stimulates Yi and B.A.A.he stated that he had committed a behavior contrary to human rights. The applicants claimed that the criticism of the plaintiff was due to their own fault, that the decision not to pursue the deciency of Hacı, that the statements of the plaintiff and the witness statements were evaluated together, that the factual basis of the news was found, and that the freedoms of expression and the press were violated due to the fact that compensation was awarded against them without regard to these issues.
23. In the opinion of the Ministry, it was stated that the compensation imposed against the applicants constitutes an interference with the freedom of expression and the press of the applicants, that this interference is not one of the requirements of the democratic social order and is not measured and proportionate, that the restrictive measure in question does not meet a mandatory social need and is not a last resort that can be applied for.
24. The applicants have repeated the claims they put forward in their individual application form in their statements against the opinion of the Ministry.
B. Evaluation
25. Article 26 of the Constitution entitled “Freedom to express and disseminate thought”. the relevant part of its article is as follows:
“Everyone has the right to explain and disseminate his thoughts and opinions alone or collectively by words, articles, images or other means. This freedom also includes the freedom to receive or give news or ideas without the intervention of official authorities…
The exercise of these freedoms may be limited to the purpose of protecting the fame or rights of others…
The forms, conditions and procedures to be applied in the exercise of freedom of expression and dissemination of thought are regulated by law.”
26. 28 of the Constitution, entitled “Freedom of the press”. the relevant part of its article is as follows:
“The press is free, it cannot be censored…
The state shall take measures to ensure the freedom of the press and of receiving news.
In limiting the freedom of the press, the provisions of Articles 26 and 27 of the Constitution are applied … ”
1. In Terms of Acceptability
27. An allegation of a violation of the freedoms of expression and the press, which is clearly not devoid of a basis and there is no other reason to determine its inadmissibility, must be decided that it is acceptable.
2. Mainly In Terms of
a. The Presence of Interference
28. It was decided that the applicants should jointly pay compensation of TL 5,000 due to their actions against the plaintiff. An interference with the freedom of Expression of the applicants was made by the said court decision.
b. Whether the Intervention Constitutes a Violation
29. Article 13 of the Constitution. the relevant part of its article is as follows:
“Fundamental rights and freedoms may be limited only by law, depending on the reasons specified in the relevant articles of the Constitution. These restrictions cannot be contrary to the requirements of the democratic order of society and the principle of moderation. ”
30. The above-mentioned intervention is included in Article 13 of the Constitution. 26 of the Constitution unless it meets the conditions specified in Article. it will constitute a violation of the article.
31. For this reason, the limitation of Article 13 of the Constitution. hereof, and which are suitable for concrete applications, applicable law prescribed by the Constitution 26. it is necessary to determine whether it meets the requirements of the democratic order of society and the conditions of non-violation of the principle of proportionality, based on one or more of the justifiable reasons specified in the second paragraph of its article.
i. Lawfulness
32. 49 of Law No. 6098. it was concluded that its article meets the Criterion of limitation by law.
ii. Legitimate Purpose
33. It was concluded that the decision to pay moral compensation to the applicants was part of measures to protect the fame or rights of others and had a legitimate purpose.
iii. Compliance with the Requirements of the Democratic Order of Society
(a) General Principles
(1) The Importance of Freedom of the Press in a Democratic Society
34. The Constitutional Court is the 26th President of the Republic of Turkey. 28 of the Constitution, which is the form attached to the freedom of expression contained in the article and its special guarantees. article in press freedom of a democratic society that is the basis of the compulsory, one of the key requirements for the development of the progress of society and each individual has stated many times that is. In this context, freedom of expression and freedom of the press are valid for everyone and are vital for the functioning of democracy (Mehmet Ali Aydın [GK], B. No: 2013/9343, 4/6/2015, § 69; Bekir Coskun [GC], B. No: 2014/12151, 4/6/2015, §§ 34-36), It is clear that freedom of the press provides one of the best tools for conveying various ideas and attitudes to the public and forming an opinion about them (Ilhan Cihaner (2), B. No: 2013/5574, 30/6/2014, § 63; Hacı Bogatekin (2), 8, No; 2014/12162, 21/11/2017, § 38).
(2) The Intervention is in Accordance with the Requirements of the Democratic Order of Society
35. In order for an intervention aimed at freedom of expression to be accepted in accordance with the requirements of the democratic social order, it must meet a mandatory social need and be proportional (Bekir Coskun, §§ 53-55; Mehmet Ali Aydın, §§ 70-72: AYM, E.2007/4, K.2007/81, 18/10/2007).
36. During the aforementioned audit, the Constitutional Court focuses on the justification of interference with fundamental rights and freedoms. Fundamental rights and freedoms of the public authorities-and proportional corresponds to a mandatory need – that is relevant and sufficient without a reason in accordance with the requirements of the democratic order of the Society of their interventions to be accepted it is not possible. Therefore, interference with freedom of expression without justification or with a justification that does not meet the criteria established by the Constitutional Court is prohibited by Article 26 of the Constitution. it will violate the article (Kemal Kilicdaroglu, B. No: 2014/1577, 25/10/2017, § 58; Bekir Coskun, § 56; Tansel Celasan, B. No: 2014/6128, 7/7/2015, § 56; Zubeyde Fusun Ustel et al., B, No: 2018/17635, 26/7/2019, § 120).
(b) Application of the Principles to the Event
37. “Some self-aware people are hostile to headscarves just to satisfy their egos, vomiting up their hatred and hatred,” the District Court of Justice said in a news release. Here is another new example …”it was concluded that the statements in the form of “the right to criticism and freedom of expression are not covered by the scope, and by adding the plaintiff’s photo, a perception contrary to the truth was created as if the plaintiff was making religious hostility, hijab hostility. The Court continued with B.A.A.as can be understood from the statements of the plaintiff, only B.A.A.he stated that he either asked questions about why he entered the class with a hijab, except that there was no situation such as not taking the student to class, not accepting them to class, and there were no incidents where the student was pressured or threats were made about it. The court has decided that the news as a whole is not in accordance with the apparent reality and is an attack on the plaintiff’s personality rights.
38. In the concrete application, it is seen that some of the statements related to the payment of moral compensation by the applicants were qualified as factual attributions by the court of first instance. When opinions and comments expressing value judgments are not suitable for proving, reliable evidence must be provided to support claims based on facts that are an attack on personality rights (see For similar assessments). Nihat Stopped and Stopped the Offset Gas. Bass. Release. Matte. Ash. and Sports Etk. and tic. Ltd. Sti, B. No: 2014/5761, 10/5/2018, § 54).
39. According to the decision of the court of appeal, first of all, it is necessary to clarify the issue of whether the applicants fulfilled their duties and responsibilities as a journalist regarding the factual allegations they put forward. Therefore, in a concrete case, it should be evaluated whether the press fulfills its duties and responsibilities to provide accurate and reliable information to the society in good faith in accordance with journalistic ethics and principles. In this context, for the mentioned evaluation, it will be checked whether the newspaper has conducted sufficient research on the accuracy of the factual claims it has put forward (for similar evaluations, see. Cetin Dogan (2) [GK], B. No: 2014/3494, 27/2/2009, § 63; Mehmet Dogan Ugurlu et al., B. No: 2015/954, 12/9/2018, § 54; Ugurlu Journalism Press Publication Printing Advertising Ltd. Sti (2) [GK], B. No: 2016/12313, 26/12/2019, § 51).
40. The applicant is not expected to act as a prosecutor who proves the veracity of a statement while fulfilling his obligation to prove it. The research obligation mentioned here should be understood not in the sense of concrete reality, but as compliance with the way the event occurred at the time of publication. It is sufficient for the applicant to establish whether the news sources are reasonably reliable in terms of these claims, as well as whether the applicant is making efforts in good faith to provide accurate and reliable information (for similar assessments, see. Orhan Pala, B. No: 2014/2983, 15/2/2017, § 51; Ugurlu Journalism Press Publication Printing Advertising Ltd. Sti.(2), § 52).
41. One of the main points on which the appeal authority based the compensation in the news subject to the application is that the plaintiff teacher mistreated her student by coming to school in a headscarf, and in this context, the allegations that the student encountered negative attitudes do not reflect the truth. Haberde B.A.A.it has been suggested that she was threatened by the school teachers and her surroundings on the grounds that she was wearing a headscarf at school, and that she was pressured by some teachers, including the plaintiff. In the court of instance, b.A.A.in her statement given by her mother, it is seen that her daughter has been criticized by students and threatened by some circles. B.A.A also stated in the court of first instance that the plaintiff left her side “saying that she knows what to do” and was humiliated by her other teachers with the words “this is a disguise” for her headscarf. In addition to these considerations, the School Principal S.E says, “Some teachers B.he took yi down to the canteen, we told him not to do such things,”he said. Therefore, the applicant seems to have shown all the grounds of his factual claims. Looking at the events as a whole, B.A.A.wear the headscarf in school due to s-fair or not – which is the source of the claim that is exposed to heavy pressure and threats of the people shown in the news, in this regard, in accordance with the responsibilities of journalists treated, processed, contrary to the apparent reality of the factual allegations baseless and have not been evaluated.
42. In addition, another aspect that should be taken into account in the application is the news about the plaintiff “Some unknowns are hostile to the hijab just to satisfy their egos, vomiting their hatred and hatred.”are the statements contained in the form and found to be arbitrable by the District Court of Justice. There is no doubt that these statements in the news are a value judgment that contains harsh and heavy criticism. However, even if an explanation consists entirely of value judgment, the proportionality of the intervention should be determined according to whether the disputed explanation is adequately supported by concrete elements. Because it can be concluded that value judgment damages personality rights if it is not supported by concrete elements (Cem Mermut, B. No: 2013/7861, 16/4/2015, § 48). Therefore, these expressions used should be examined within the scope of the incident subject to the application, in the light of the entire relevant part of the article and in the context of the way it is said.
43. On 27/9/2014, it was made possible for middle and high school students to go to school with a headscarf with the amendment made to the regulation on the costumes and clothing of students in schools affiliated to the Ministry of National Education. In the period before the change of the regulation, the issue of whether students of this age can go to schools with a headscarf was discussed a lot and these discussions found a wide place in the public opinion. It is known that there is also a segment in the discussions that opposes the use of headscarves in schools and makes rhetoric targeting those who wear headscarves. This aspect-when looking at the history of writing – regulation recently described the events prior to the change sensitivity is very high sensitivity for a large segment of society representing the public and located on the axis of the debate that, in regard to this incident was drawn up.
44. It can be assumed that the statements contained in the news are hurtful from the point of view of the plaintiff. However, in the opinion of the Constitutional Court, they should be more tolerant of criticism, especially regarding the savings of public officials. Because the actions and actions of public doves have the potential to affect all people living in this country. In this respect, subject to negligence by keeping a strict control their actions, or their citizens, public officials, decision-making process and contribute to the tolerance requirements of the sine qua non of a democratic society, in this context, an idea that is described to be the salt of the authorities harshly criticize, be expressed using sharp language, even unilateral, contradictory and subjective doesn’t mean you will benefit from the scope of protection of freedom of expression (in the same direction for the evaluations, see. Ali Suat Ertosun (7), B. No: 2014/1416, 15/10/2015, § 36; 128, 129; Nilgun Hallaran, § 45; Ilhan Cihaner (2), § 82).
55. It should be decided that the total trial expenses of TL 3,964.60, consisting of the fee of TL 364.60 determined from the documents in the file and the power of attorney fee of TL 3,600, should be paid jointly to the applicants.
VI. PROVISION
On the grounds described;
A. THAT an allegation of a violation of the freedoms of expression and the press is ADMISSIBLE,
B. 26 of the Constitution. and 28. that the freedoms of expression and the press guaranteed in the articles have been VIOLATED,
C. An example of the decision is Adana Regional Court of Justice 3 for the purpose of conducting a retrial to eliminate the consequences of violation of freedoms of expression and the press. Iskenderun 2. To ensure that it is sent to the Legal Department. To the Court of First Instance (e.2013/577, K.960/2017) SUBMISSION,
D. A total of TL 3,964.60, consisting of a fee of TL 364.60 and a power of attorney fee of tl 3,600, will be paid JOINTLY to the applicants for the costs of the trial,
E. Payment must be made within four months from the date of application of the applicants to the Ministry of Treasury and Finance following the notification of the decision, if there is a delay in payment, legal INTEREST will be APPLIED for the period from the date of expiration of this period to the date of payment,
F. It was UNANIMOUSLY decided on 26/5/2021 that a sample of the decision should be SENT to the Ministry of Justice.
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