Illustration: In front of the Turkish flag, a hand holds a large magnifying glass on civilians.

“I felt despair, but also great courage”

The former judge at the German Federal Constitutional Court, Udo Di Fabio, participated in the lecture programme and travelled to Turkey to speak with journalists about the situation regarding freedom of expression there. In this interview, he shares his personal impressions and explains why discussions with the Turkish government continue to be important.

The interview was conducted by Juliane Pfordte

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?


Di Fabio: In order to carry out the conflict surrounding the limitations of freedom of expression fairly, we not only need free access to information and a private, ungoverned media landscape, but also an independent judiciary, and there can no longer be any question of that in Turkey. During the past years, tens of thousands of judges and public prosecutors have been removed from their office, and this is a very clear sign of the political deformation of the judiciary.

As soon as we no longer have independent courts to which people can turn in cases of doubt, they will be more careful about what they say. This is something I noticed during my journey. In discussions, for example with the taxi driver, criticism of the Turkish government was expressed only indirectly and in an encrypted manner.

A Hand in a black glove is holding a sign with a photo of Osman Kavala.
In April 2022, a court in Istanbul sentenced the Turkish patron of the arts, Osman Kavala, to life imprisonment for attempting to overthrow the government. Kavala has been in prison since 2017. In November 2022, he received the ifa Award for the Dialogue of Cultures, Photo: picture alliance/dpa, Christophe Gateau

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.


Photo of th European Court of Human Rights building.
The European Court of Human Rights (ECtHR) monitors compliance with the European Convention on Human Rights in the 47 member states which have ratified the Convention; this includes Turkey. Judgements made by the ECtHR are binding for the states in question. The Committee of Ministers of the Council of Europe monitors the execution of these judgements, Photo: picture alliance / Winfried Rothermel

And as long as constitutional structures still exist to some extent, such a conviction can still be asserted in court. Since the late phase of the Eastern bloc, we know how important this can be. Even the GDR and Communist Poland signed the CSCE Final Act, thus committing themselves to respecting human rights and fundamental freedoms. Naturally, they did not subsequently truly respect these rights, but the opposition movements were able to refer to this signed Final Act. And that is an argument which can exert considerable pressure in public.

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 impressions did you take back to Germany with you?

Di Fabio: I found myself in protected spaces and so my impressions may be distorted, but I perceived a very dynamic civil society. This is not the only reason why we should continue to show interest in this country. Turkey is far more ambivalent, western and closer to us than you would believe if you only look at the head of state. We have a common history; our worlds are intertwined through the millions of immigrants from Turkey and through tourism. Every democracy must stay vigilant and continue to go through diplomatic channels so that a political opposition in Turkey sees that it is worth fighting for a change in government.

Photo of a person wearing a yellow vest in front of a graffiti mural.
On 17 April 2017, a worker in Istanbul sweeps in front of a graffiti showing the image of the nation’s founder, Atatürk, and the year of its formation, 1923. The previous day, the Turkish people voted narrowly in favour (“Evet” / Yes) of an amendment to the constitution. Thus, the Turkish president became the state president and head of the government at the same time; the office of prime minister was abolished and his control over the judiciary was extended, photo: picture alliance / Michael Kappeler/dpa

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.

About the Author
Portrait of Udo Di Fabio
Udo Di Fabio
Legal Scholar

Udo Di Fabio is Professor of Public Law at the University of Bonn and co-editor of the journal "Archiv des öffentlichen Rechts". He studied law and social sciences in Bochum and Duisburg. This was followed by positions as a judge at the Social Court of Duisburg and as a research assistant at the Institute for Public Law at the University of Bonn. From 1999 to 2011 he was a judge at the German Federal Constitutional Court. His publications include: "Die Kultur der Freiheit" (2005), "Schwankender Westen" (2015), "Die Weimarer Verfassung" (2018) and "Coronabilanz: Lehrstunde der Demokratie" (2021).

Lecture Programme of the German Federal Government

Experts from politics, academia, culture and the media provide up-to-date and multi-faceted information about Germany in lectures and panel discussions. The ifa organises the Federal Government's lecture programme together with the German embassies and consulates abroad. It is aimed at multipliers from civil society in these countries. Find out more on the ifa website.