A harsh statement an attorney uses in a lawsuit petition cannot be punished merely because it is found disturbing. Its connection with the dispute, the facts it rests on, its contribution to the defense and its effect on the addressee must be assessed together. Nevertheless, freedom of defense does not grant unlimited immunity against personal attacks. Criminal liability, professional discipline and private-law liability each require a separate legal analysis.
This article addresses the insult and disciplinary allegations that attorneys face because of petitions submitted to courts. The leading decision is the Constitutional Court's (Anayasa Mahkemesi, AYM) Kenan Gül (2), Application No. 2018/24311, June 15, 2021 decision. When assessing the current disciplinary framework, the provisions of Attorneyship Law No. 1136 (Avukatlık Kanunu), as amended by Law No. 7571 in December 2025, must also be taken into account.
What is the legal basis of freedom of defense?
An attorney's statements lie at the intersection of freedom of expression, protected by Article 26 of the Constitution, and the right to seek legal remedies under Article 36. Effectively raising a claim may require criticizing the conduct of the other side or objecting to an act of the court. The function of legal assistance is not limited to repeating the sentences on which the parties agree.
However, an attorney's professional duty does not automatically render every word used lawful. A concrete balance must be struck between protecting the right of defense and protecting the personality rights of the addressee. To strike that balance, a sentence in a petition must not be assessed in isolation from the statements before and after it.
What protection does Article 128 of the Turkish Criminal Code provide?
Article 128 of the Turkish Criminal Code (TCK) is a special provision concerning written and oral applications, claims and defenses made before judicial authorities or administrative bodies. The protection guarantees the possibility of making concrete accusations or negative assessments about persons, on condition that they rest on real and concrete facts and are connected with the dispute. Accordingly, it is not sufficient that the text merely bears the title “petition.”
This provision matters when examining whether an offense has been committed. By contrast, it cannot be said that a bar disciplinary investigation must be concluded directly on the same ground. The disciplinary authority applies its own statutory framework; yet it is not relieved of its duty to assess freedom of expression under the Constitution and the function of the defense.
Do professional rules remove the constitutional assessment?
Article 34 of the Attorneyship Law (Avukatlık Kanunu) sets out the duties of care, accuracy, honor, respect and trust. The existence of these duties is clear. The real question is why it is necessary to impose a particular sanction for a particular statement. A general characterization as contrary to professional dignity cannot replace an examination of the explanations that connect the statement to the dispute.
Legal characterization: Professional discipline is not an area outside freedom of expression. A disciplinary sanction, even if it has a basis in domestic law, may in a concrete case conflict with the requirements of the democratic order of society.
Which facts were examined in the Kenan Gül (2) decision?
The applicant attorney received a disciplinary penalty because of statements in a petition submitted on behalf of a client in a custody dispute. The AYM noted that the statements were used in a dispute in which family relations and parenting conduct were important, and that the petition had to be assessed together with its wording and its grounds. The center of the examination was not the attorney's own personal argument but the transmission of the client's claims to the court. (Kenan Gül (2), §§ 42–49.)
A short, direct quotation from the decision
“Statements made by attorneys, or written declarations, must be assessed in the context in which those statements or declarations were made”
Source of the quotation: AYM, Kenan Gül (2), Application No. 2018/24311, June 15, 2021, § 44. The quotation is the part of the sentence in the paragraph that precedes the citation bracket.
Operative part and the limits of the decision
Operative part of the AYM's decision: The freedom of expression guaranteed by Article 26 of the Constitution was violated. A retrial was ordered to remedy the consequences of the violation. (Kenan Gül (2), §§ 50–59 and the operative part.)
Our assessment: This decision does not mean that every harsh statement in a petition will be protected. What is decisive in the decision is the examination of the connection between the concrete statements and the subject of the case, and of the explanations on which the attorney relied. An accusation directed at an unrelated person merely to cause harm cannot be written on the assumption that it will enjoy the same protection.
How is the legal nature of a statement in a petition determined?
Factual allegations must be separated from value judgments
A claim that a person received money on a particular date or altered a document is a provable factual allegation. An assessment that an act was unfair, contradictory or unconvincing is, in most cases, a value judgment. The dictionary meaning of a word alone is not sufficient; the function it serves in the sentence must be examined.
Demanding mathematical proof for a value judgment and leaving a serious factual allegation entirely unsupported are different problems. A sound defense identifies events that can be shown by documents and explains, in a separate sentence, the conclusion drawn from them. In this way the reader can see which part is material fact and which part is legal assessment.
The connection to the dispute must be visible
The reason a harsh statement is used in a petition must be clearly shown. For example, in a custody dispute, conduct concerning the child's care may be important, whereas demeaning remarks aimed at the private life of the other party, unconnected with the case, are assessed differently. A connection that exists only in the attorney's mind is not enough; it must be apparent from the content of the petition.
To strengthen the connection, the date of the event, the relevant document and its importance in the dispute may first be explained. The legal result being requested may then be shown. Describing conduct relating to the dispute, instead of using broad epithets aimed at a person's entire character, increases the legal strength of the defense.
The scope of dissemination and the addressee matter
A petition submitted to a court and the same allegations published on an openly accessible social media account are not the same communication environment. Taking statements used in proceedings outside the file may raise further problems concerning personal data, private life, professional secrecy and ongoing proceedings. Protection in the context of defense does not by itself remove all the consequences of a text being circulated through other channels.
For this reason, a disciplinary file must explain not only the content of the statement but also to whom it was conveyed and by what means. Where there are different acts of publication for the same text, each act must be assessed separately.
How does the December 2025 amendment affect disciplinary review?
Articles 134 and 135 of Law No. 1136 were rewritten by Law No. 7571 of December 24, 2025. The current Article 134 ties sanctions to conduct contrary to the honor and title of the attorney profession, to the respect and trust required by the right of defense, and to the duties of care and accuracy. The current Article 135 specifies the disciplinary penalties and the conduct associated with them.
In particular, the part of Article 135 that regulates the warning penalty lists conduct such as statements during professional work that are unrelated to law and statutes, and going beyond the legal framework of an allegation or defense. Accordingly, in a new file it is not sufficient to rely merely on the old statutory text quoted in earlier decisions. The date of the act, the provision to be applied, the entry into force of the amendment and the question of its application in time must be examined together.
Definitive conclusion: The constitutional balancing approach of the 2021 Kenan Gül (2) decision retains its importance; the disciplinary provision in force at the time of that decision and the provision in force in 2026 cannot be conflated. The new statutory arrangement does not make concrete reasoning and proportionality review unnecessary.
Can a penalty be imposed without obtaining a defense statement?
Article 137 of the Attorneyship Law requires that the accusation be notified to the attorney clearly and in writing, and that at least ten days be granted for a written defense. The request for a defense statement must make clear which statement, which dated petition and which disciplinary provision is relied on. A vague accusation makes an effective defense harder.
A defense that is merely formally obtained is not enough either. The decision must evaluate the attorney's substantive explanations on the connection to the dispute, the documentary basis and the context of the statements. It should be argued separately that a decision leaves unanswered defenses which could affect the outcome of the file.
How are criminal, disciplinary and compensation proceedings distinguished?
| Process | Core review | Matters to explain in the file |
|---|---|---|
| Criminal investigation or prosecution | Elements of the offense and the conditions of Article 128 of the TCK | Concrete basis of the accusation, context of the defense, connection to the dispute |
| Disciplinary investigation | Applicable professional provision and whether the sanction is necessary | Date of the act, correct sub-paragraph, assessment of the defense, proportionality |
| Private-law dispute | Unlawful interference with personality rights and the conditions of the claim | Effect of the statement, grounds of lawfulness, damage and the remedy sought |
The effect of a decision in one file on another should be examined according to what that decision conclusively determines. It is incorrect to reach a definitive conclusion on the disciplinary outcome without reading the reasoning of an acquittal, or to infer criminal guilt directly from a disciplinary penalty. For each process, the competent authority, the route of application and the time limit must be determined separately.
How should the defense file be prepared?
- The petition complained of should be preserved in full, with its annexes, not only the disputed sentence.
- The type of case in which the petition was submitted, the status of the parties and the matter in dispute should be explained in a short chronology.
- The document, correspondence or client statement on which the statement is based should be shown, together with how it was obtained and where it sits in the file.
- The connection between the statement complained of and the legal claim put forward should be clearly established.
- The disciplinary accusation, the request for a defense statement, the time granted, the board decision and the service records should be added to the file.
- Constitutional objections should be raised at the earliest suitable stage; later applications should show how, and in which decision, those objections were addressed.
The main aim of this preparation is not to argue abstractly that the statement is harmless. It is to explain, with verifiable data, why the statement was used and why the sanction is unnecessary or disproportionate. Presenting the whole document, rather than concealing the unfavorable elements, is a stronger and more reliable legal method.
How is a sample legal assessment written?
In a hypothetical example, an attorney might state in a petition that the opposing party's statements contradict one another. An effective explanation sets out the two conflicting statements, their dates and their effect on the dispute. Instead of using a general epithet about the opposing party's character, it shows which statement contradicts which document.
This example is neither a court decision nor a guarantee of outcome. The principle to draw for petition technique is: legal characterization must first be built on the facts that are explained. An assessment whose basis is visible contributes more to the purpose of the proceedings and makes a later freedom-of-expression review more concrete.
Which mistake should be avoided in an individual application?
An application to the Constitutional Court does not replace ordinary legal remedies. The effective remedies available in the relevant disciplinary and judicial proceedings must be exhausted, and the essence of the constitutional complaint must be presented to those authorities. The general time limit for an individual application under Article 47 of Law No. 6216 is thirty days, counted from the exhaustion of the remedies or, where no remedy is provided, from learning of the violation. The records of learning and notification in the concrete file must be assessed together.
The application should not merely name freedom of expression. It should explain which statement was used in which context, which important defense the ordinary authorities failed to examine, and how the sanction affected the attorney's professional activity. Any request for a retrial or another remedy should also be linked to the alleged violation.
For more on this subject, see our articles on qualified rights in Constitutional Court decisions and the right to a fair trial. For our firm's work in this area, see the page on Constitutional Court and European Court of Human Rights (AİHM) applications.
Conclusion
Freedom of defense prevents statements in a petition from being punished when they are taken out of their context. But a court file is not an unlimited space for personal attacks. A sound examination assesses together the concrete facts, the connection to the dispute, the contribution to the defense, the extent of dissemination and the weight of the sanction.
The Kenan Gül (2) decision shows that disciplinary authorities and courts must make this assessment visibly. In a current file, the provisions of the Attorneyship Law as amended in December 2025 must also be applied, and the date of the act and the norm to be applied must be clearly determined.
Frequently Asked Questions
Is every statement written in a petition covered by defense immunity?
No. Submitting a written text to a judicial authority alone is not sufficient. The assessment must consider the grounds for the accusation, its connection to the dispute and the purpose of the defense.
Can an attorney reproduce word for word every statement the client makes?
The client's account is important, but the attorney's duties of care and accuracy continue. The source of the claim, its importance in the dispute and its difference from the legal characterization must be clearly shown.
Does an acquittal for insult automatically lift a disciplinary penalty?
It cannot be said that it produces an automatic result in every case. The reasoning of the acquittal, the facts established and the legal nature of the disciplinary accusation must be examined together.
Can older AYM decisions still be used after the 2025 amendment?
They can be used for constitutional criteria. However, the statutory text in an old decision must not be presented as if it were the current text; the provision applicable in time must be explained separately.
How much time should be given for a disciplinary defense?
Article 137 of the Attorneyship Law provides for a period of at least ten days. The accusation must also be notified clearly and in writing. The specific period and service record in the file should be checked separately.
Sources and legal bases
- Constitution of the Republic of Türkiye, Arts. 13, 26 and 36.
- Attorneyship Law No. 1136 (Avukatlık Kanunu), Arts. 34, 134–137; amendments made by Law No. 7571.
- Turkish Criminal Code No. 5237 (TCK), Art. 128.
- AYM, Kenan Gül (2), Application No. 2018/24311, June 15, 2021, in particular §§ 42–59 and the operative part. The full decision link may require sign-in.
- Law No. 6216, Arts. 45–50.
- AYM, Summaries of Qualified Rights Decisions (Nitelikli Haklar Karar Özetleri), June 2025, section on insult in the context of claims and defenses; the thematic starting source used to locate the decisions.