Calling the father a ‘liar’ in custody case is freedom of expression, says the top court

* Photo: Anadolu Agency (AA) - Archive

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The Constitutional Court has finalized the application of lawyer Kenal Gül, who was given a reprimand by the Kocaeli Bar Association over his remarks about the male defendant in a custody case.

The Court has concluded that the lawyer's freedom of expression, guaranteed by Article 26 of Turkey's Constitution, has been violated. The lawyer will now be paid 8,100 lira in non-pecuniary damages. The ruling of the top court will be sent to the Ankara 18th Administrative Court so that the consequences of the violation can be eliminated in a retrial.

'He yelled, deterred, pressured, caused fear'

Lawyer Kenan Gül was representing a complainant woman in a custody case that was filed following a divorce case.

In his petition to the court on May 2, 2013, the lawyer explained the reasons behind the mother's request for children's custody as follows:

"The defendant father is not honest; he has the disposition of a liar and fraud. He does not like working. He engages in illegitimate works.

"While the parties were living in Bursa after getting married, they were faced with several debt enforcement proceedings due to the debts that the defendant had got into and did not pay; the creditors came to their door and as the defendant was avoiding the creditors, my client had to open the door; she, together with their children, was subjected to the creditors' insulting words, threats, harassment and behavior.

"As a consequence, the defendant father resorted to fleeing to Kazakhstan (of which the mother is a citizen) as he was not safe in Bursa under the aforementioned conditions; however, he continued acting in the same manner in Kazakhstan and did the same things.

"The defendant father, in the face of the rightful criticisms of my client (the mother), always yelled, forced her to stay silent, deterred her, put everyone under pressure, including the children, and created fear.

"As can be understood, the defendant father is not morally honest and inflicted serious harm on my complainant client as well as their children."

'He is merciless, insensitive, indifferent'

The petition of the lawyer also said that the father told the children "their mother had died" even though it was not right:

"While the defendant father has not been honest with my complainant client, he has lied to her and deceived her all the time, he deceived the children as well. The father took the children to Bursa, to his home city, with the intention and promise of having a vacation; however, he did not keep his word and just as he has not let the children see their mother until now, he has also partially or completely restricted their communication on the phone or on the Internet at every opportunity.

"As a matter of fact, after the defendant father deceived their children and the complainant mother and brought the children from Kazakhstan, where they lived together, to Bursa, he did not bring the children back to the complainant mother in Kazakhstan and, very tragically, he could tell the children that their complainant mother had lost her life.

"During the long time that had passed until the children could contact their mother by their own means, the children thought that their mother was dead, experienced great sorrow over the passing of their mother for a long time and their mental health was negatively affected as a result.

"The defendant father is so merciless, insensitive and indifferent that he could tell their children that their mother died. [...] The father obviously does not care for their children sufficiently, he is incapable of fulfilling his custodial duties and has extremely neglected the children."

Court fined him for 'insult'

Following this petition, the defendant father filed a lawsuit against lawyer Kenan Gül and accused him of insult.

The Bursa 1st Heavy Penal Court ruled that Gül should be given a judicial fine of 1,500 Turkish Lira (TRY) for "insult" and ruled that the pronouncement of the verdict should be suspended. Gül's application against this local court ruling ended in a ruling of right violation by the Constitutional Court, which said that his freedom of expression was violated.

But a complaint was also lodged against Kenal Gül at the Kocaeli Bar Association. The Bar, with its decision dated June 10, 2016, gave the lawyer a reprimand as per the Article 136/1 of the Attorneys' Act.

With his appeals against this fine being rejected, lawyer Kenan Gül made another application to the Constitutional Court.

'Petition was based on father's behavior'

The detailed ruling of the Constitutional Court was published in the Official Gazette today (August 12). The top court has once again concluded that the freedom of expression of the lawyer was violated.

In its ruling, the Court has noted that "the related remarks of the lawyer in the petition were based on the behaviors of the opposite party before and after the trial." Underlining that the remarks in the petition should be considered within their context, the Court has said, "The expressions are the feelings and thoughts of the applicant's client. That being the case, the accusations and evaluations have a factual basis, they are about the matter of dispute and they contributed to the judge's forming an opinion in the custody case."

Emphasis on the 'right of defense'

The Constitutional Court ruling has also emphasized the lawyer's right of defense. The top court has underlined that "giving disciplinary punishments to lawyers, who exercise their right of claim and defense guaranteed by the Constitution, due to their remarks in lawsuit petitions will lead to professional harm and might have a deterring effect on their expression of thoughts and their right and duty to defend their clients in a sufficient and free manner in their future professional lives." (AS/SD)