Events
An investigation was initiated against the applicant, who was the mayor of the municipality, for the offence of disrupting the unity and territorial integrity of the state due to his participation in a press statement coinciding with the beginning of the trench incidents. The applicant was detained for three days and then arrested. The trial was conducted at the heavy penal court and the applicant was released during the trial. As a result of the trial, the applicant was sentenced to imprisonment on the charge of being a member of a terrorist organisation and was arrested with the verdict. The decision on conviction was finalised after being examined on appeal and cassation.
Allegations
The applicant claimed that his right to freedom of expression had been violated as his participation in a press statement as a listener had been used as evidence in his conviction for membership of a terrorist organisation.
The Court’s Assessment
First of all, the importance of the self-administration issue for the PKK terrorist organisation should be mentioned. In 2007, the PKK established an organisation under the name of KCK. With this restructuring, the organisation tried to be structured like a state system and a contract text, which is accepted as a constitution for the organisation, was created. It is understood that an autonomous structure was established in this text, which is called the KCK Agreement, and that the PKK terrorist organisation also made statements on the issue of self-government in its final declarations. Starting from the last week of July 2015, statements were made by the PKK terrorist organisation and its senior executives and different structures of the organisation to declare self-administration in order to implement the order envisaged in this convention and explained in the declarations.
The applicant participated in a press statement which was a declaration of self-administration. When the opinions in the press statement in question are evaluated together with the context in which the statement was made, these statements fulfil the PKK’s instructions to declare self-administration and call for the use of armed force in the district. Moreover, the statements in question were made at a time when clashes between the PKK terrorist organisation, which was trying to establish dominance in certain parts of the Southeastern and Eastern Anatolia Regions of the country, and the security forces were increasing. Lastly, it is also clear that immediately after the press statement, grave acts of violence took place in Sur district.
When all these explanations are evaluated together, it is assessed that the content of the press statement encourages the increase in violence in Sur district and contains the idea that the use of violence against the state is necessary and justified. In addition to this, it has been concluded that the press statement in question enabled people to raise awareness that it is necessary and justified to resort to violence against the state, which is shown as the aggressor, and to encourage terrorist attacks, that it serves to make the voice of a terrorist organisation heard by the masses and that it is in the nature of sharing a message with the public that will lead to the danger of committing a terrorist crime.
On the other hand, according to the assessments of the Constitutional Court, it is impossible for the applicant, who is the mayor of a district in a region where terrorist incidents have increased, not to be aware of the declarations of self-administration made under the name of press statements in many provinces or districts and not to evaluate that the consequences of the press statement he attended would be similar.
Although the applicant, as a politician, should have taken into consideration that his participation in the press statement would increase the impact of the ideas in the press statement on the society, on the contrary, he participated in the declaration of self-government in accordance with the instructions of a terrorist organisation, the perpetrator of acts of violence that caused the deaths of many civilians and security officers. Therefore, it has been concluded that the applicant, who is the mayor of the municipality, participated in and supported the press statement in question, even though he was aware of the consequences of a press statement that explicitly advocated the organisation’s methods involving force, violence or threats, considering the existing conditions as of the date of the incident
In this context, the Constitutional Court considered that the first instance court’s conviction of the applicant on relevant and sufficient grounds cannot be regarded as contrary to the requirements of the democratic social order, taking into account the margin of appreciation that the courts of first instance have when balancing different interests.
When the grave nature of the violent incidents that took place after the press statement attended by the applicant and the fact that the expression of thought in question was carried out under the instruction of the organisation during a period of conflicts that caused the death and injury of many security officers and civilian citizens and heavy material losses are evaluated together, it was concluded that the intervention in the form of sentencing the applicant to 10 years and 15 months imprisonment for the crime of being a member of a terrorist organisation corresponded to a compelling social need and was proportionate and that the intervention was not contrary to the requirements of the democratic social order.
The Constitutional Court decided that the freedom of expression was not violated for the reasons explained.
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