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Sentenced to compensation by a local court for insulting a politician then recently elected MP from the ruling party, Hacı Boğatekin went to Constitutional Court where he won the case. However, he has to return again to the Constitutional Court now for the same case since the local court has not recognized the decision of the top court.
On September 9, 2011, Hacı Boğatekin, publishing a newspaper in Adıyaman in southeast Türkiye called Gerger Fırat, wrote an article about Mehmet Metiner who was elected an MP in the elections held that year on June 12.
Metiner, a journalist, writer, and politician born in Adıyaman, had served as the editor-in-chief in various magazines of the Islamic circles in Türkiye before and in 2000-2001 he was the vice-president of HADEP, an antecedent of the People's Democratic Party (HDP) of today.
The title of Boğatekin's article on Metiner was "Son Memo... Who are you?" and he was quoting the words of an ex-lead writer of Akit daily, Hüseyin Üzmez for Metiner saying, "Are you a renegade or are you a cow ("dönek" or "inek" in Turkish).
Further in his article, he wrote, "Really what are you? First Istanbul Metropolitan Municipality. Then the Fazilet Party. Then, Vice President of HADEP. And now the Justice and Development Party... So what are all these about?"
Metiner sued Boğatekin for the article. The court in İstanbul ruled for a compensation penalty of 3,500 lira in January 2013 which the Court of Cassation approved in 2014.
Boğatekin took the case to the Constitutional Court (AYM) where the judgment was overturned in 2017. The Court ruled that saying "Are you a renegade or are you a cow" was not an insult.
In the ruling of the high court, it was accepted that the expression was offending, shocking, and disturbing. However, it was stated that "the limits of criticism acceptable for the complainant who is a public character are broader than an ordinary person" and argued that giving penalties for critics towards politicians would have a "dissuading effect," causing different voices in the society to be silenced and ruled that there was a violation of freedom of press and freedom of expression on the side of Boğatekin.
The court also ruled that Boğatekin should be paid a compensation of 3,600 lira.
Local court did not recognize the ruling
Following the ruling Hacı Boğatekin went to the local court for a re-trial. However, the local court did not recognize the supreme court ruling and rejected the request for a re-trial.
There had been two other cases where the local courts did not recognize Constitutional Court rulings, one on Republican People's Party MP Enis Berberoğlu, and another on the Peace Academicians.
Boğatekin went to the Court of Appeals which also approved the local court's rejection of re-trial, saying "it is not obligatory to practice the Constitutional Coourt ruling."
"Retrial is obligatory after Constitutional Court ruling"
Following this decision by the Court of Appeals, Hüseyin Boğatekin, Boğatekin's lawyer again went to Constitutional Court.
Lawyer Hüseyin Boğatekin told bianet that there was no judgment in the template of judgments of the supreme court for re-trial, but that according to the Constitution, the courts were obliged to rehear the cases.
Boğatekin also told bianet that the Constitutional Court was now indicating "in order for the case to be reheard" now due to the confusion this situation is causing and said, "This is causing unjust suffering. The courts are resisting AYM rulings. However, they do not have the authority to do this. And AYM does not have to write a judgment for retrial. A retrial has to be carried out in any case, it is a clear legal obligation to follow the AYM rulings." (HA/PE)
