THE THEORY OF HORIZONTAL EFFECT AND FREEDOM OF EXPRESSION: THE PERSPECTIVE OF THE TURKISH CONSTITUTIONAL COURT

Authors : Dilara Dönmezkuş

Pages : 443-496

View : 15 | Download : 9

Publication Date : 2024-06-27

Article Type : Other Papers

Abstract :Traditionally, constitutional rights regulate relations between the state and individuals and protect freedoms against the state. However, since the state has transferred many sectors to private actors, it has been argued that rights should be effective in private law. As one of the requirements of constitutionalism, the “horizontal effect theory” ensures that rights affect relations in private law, and individuals may claim that their rights have been violated. On the other hand, as one of the needs of a democratic and pluralistic society, states have negative and positive obligations to protect freedom of expression. States are under “the obligation to act,” which means they must embody and balance rights when parties rely on constitutional rights in legal disputes. According to the Turkish Constitution, the constitution is also binding for private people, and it brings duties and responsibilities to private actors. Since the right of individual application to the Constitutional Court is accepted, it is considered that the effect of fundamental rights on private law will be enhanced. This article aims to argue, whether constitutional rights and especially freedom of expression bring constitutional obligations to private parties, in the context of the horizontal effect theory and the positive obligations of the state within the Turkish legal system.
Keywords : Temel hakların yatay etkisi, özel hukukun anayasallaşması, ölçülülük ilkesi, ifade özgürlüğü, devletin pozitif yükümlülükleri.

ORIGINAL ARTICLE URL