“I felt despair, but also great courage”

Mr. Di Fabio, you were a judge at the German Federal Constitutional Court in Karlsruhe, the “guardian of German basic law”, for twelve years. Do you have what one might call a favourite article?

Udo Di Fabio: Not really. German Basic Law has many strong sentences, for example, “Human dignity shall be inviolable” and “All state authority is derived from the people”. I love this clear and simple language. Each basic right, be it the freedom of belief and conscience or the freedom of expression and the press, breathes the spirit of the fight for this freedom. This was already set out in a similar form in the Frankfurt Constitution of 1849, for example freedom of the press. People knew that these rights are fundamental in building a free society.

In the spring of 2022, during your journey for the German government’s lecture programme, you spoke in Turkey about the value and limitations of freedom of expression. Although the Turkish constitution also guarantees basic rights such as freedom of expression and the press, in actual fact these have been increasingly restricted for years. What are the main reasons for the lack of freedom of expression in Turkey?

Difficult Dealings with “Disinformation”

In October 2022, the Turkish government adopted the so-called ‘Disinformation Act’. Whoever spreads “fake news” on social media faces up to three years in prison. This applies not only for journalists, but also for private social media users. What is legally meant by the terms “fake news” and “disinformation”?

Di Fabio: “Disinformation” or “fake news” are vague terms which must be handled with care from a legal perspective. Although a statement of fact which has been demonstrated to be untrue does not automatically come under the protection of freedom of expression, often – apart from impudent and evident lies – imprecise wording is used, controversial data, lop-sided correlations or a selective presentation of facts and their weighting which, according to the case law of the German Federal Constitutional Court, must remain permissible within the scope of protection of freedom of expression to ensure that the boundaries are not drawn too tightly.

The term ‘disinformation’ has been used much more often, especially since Trumpism, and it is regarded as a problem – in Germany as well. Even the German Federal Office for the Protection of the Constitution is considering whether intentional disinformation, which often comes from abroad and systematically damages democracy’s reputation, should be placed under observation. The problem is that then autocracies will come and say: we know all about this particular phenomenon and that is why we forbid factual claims which, from our point of view, are false and why certain evaluations are punishable by law. It is important that we continue to regard opinions in a friendly manner so that we are also credible, for example in our relations with Turkey.

Turkey and the European Court of Human Rights

The European Court of Human Rights (ECtHR) has condemned Turkey a number of times for violations against the European Convention on Human Rights (ECHR), which was also ratified by Turkey, for example because the section in its criminal law on offences against the president does not hold conform with the freedom of expression. Most recently, the Council of Europe initiated infringement proceedings against Turkey because it did not comply with the obligation to release the imprisoned human rights activist and patron of the arts, Osman Kavala. What effect can such proceedings or judgements have?

Di Fabio: The ECHR is an international agreement and we know that violations do not necessarily result in sanctions at the level of international law. In other words: the judgements made by the ECtHR merely have a declaratory effect; they cannot be enforced against Turkey nor can infringement proceedings be opened which would provide possibilities for financial sanctions. Thus, I would not say that the judgements are ineffective, because states suffer from a loss of reputation in the international public eye when they are convicted.

A Country in Transition to Autocracy?

On this journey, you took part in two discussions with Turkish journalists, one at the German embassy in Ankara and one at the Consulate General in Istanbul. What questions and topics were discussed there?

Di Fabio: Among others, the question of whether there will be free parliamentary and presidential elections in 2023 and thus the possibility for a change of government. Everyone assured me that the results of the elections in Turkey would not be falsified and that the people believe in the power of elections. I can’t say whether or not this is calculated optimism. There are certainly countries in which the freedom of expression has been severely restricted; nevertheless, they hold free elections. But the fact is that the value of the electoral decision is significantly reduced when the freedom of the media and of expression are so strongly restricted. You have to ask yourself whether such a country is still a democracy in the fully valid sense or already finds itself in the transition from a democracy to an autocracy. We experienced something similar in Russia, where the freedom of expression was continuously restricted until suddenly journalists were imprisoned or even died.

What would be one such diplomatic channel?

Di Fabio: For example, the prospect of joining the European Union. Basically, I was never in favour of offering this to Mr. Erdogan, but a democratic Turkish government which reinstates freedom of expression and an independent judiciary should certainly be offered the prospect of such a possibility.

How can the German government support civil society?

Di Fabio: It is important that we continue our discussions with the Turkish government and make a policy of self-assertion of our values both clear and visible. Many people, whether in China, Russia or Turkey, very carefully follow how Western democracies deal with the threat to freedom. That is basically what the Western world has been doing in some sort of unity since Russia’s attack on Ukraine.

No decent Existence without Freedom of Expression

And finally, do you have any thoughts about your journey which you would like to share with us?

Di Fabio: At these events, it was mainly people from the opposition, journalists who were threatened with criminal proceedings or already under arrest, who had their say. On the one hand, I felt despair, but also great courage, the kind of courage which is required to state your opinion on a more or less public stage. For a German constitutional lawyer, this is an experience which triggers not only empathy, but also makes it very clear just how fundamental such rights as the freedom of expression are: fundamental because you can no longer talk about a decent life if you are not free to say what you think; if you must anticipate that you will suffer sanctions or even end up in prison. That is the fate of many who had their say there, and I found this very touching.