No Violation Of Freedom Of Expression Due To Proportionate Intervention
Events
The applicant is a member of the Central Executive Board of the Democratic Society Party, which was active at the time of the events subject to the application. On 28/11/2009, the Public Prosecutor’s Office filed a public case against the applicant for committing a crime on behalf of a terrorist organisation and making propaganda for a terrorist organisation due to his participation in a tree planting ceremony held as part of a festival organised by Lice Municipality.
The Chief Public Prosecutor’s Office stated in the indictment that the event in question was organised in line with the call of the terrorist organisation in order to make the history of the establishment of the terrorist organisation and the place where it was established known and recognised by the organisation’s base and sympathisers. Heavy penal court (the Court) decided not to sentence the applicant for the offence of committing a crime on behalf of a terrorist organisation without being a member of a terrorist organisation and to postpone the prosecution for the offence of making propaganda for a terrorist organisation and the applicant was placed under supervision for three years. The applicant’s appeal against this decision was rejected.
Allegations
The applicant claimed that his freedom of expression was violated due to the decision to postpone the prosecution against him for an event he attended.
The Court’s Assessment
In the concrete case, the applicant claimed that the house where the tree planting was carried out was the house where the declaration of the establishment of the terrorist organisation was made and that he did not know that the date of the visit coincided with the date of the establishment of the terrorist organisation in question, and that he had attended the event in question by chance after the celebrations. The Court disregarded the applicant’s defence, taking into account the previous calls and messages regarding the celebrations intended for the anniversary of the founding of the terrorist organisation, the place and date of the tree planting and the applicant’s political personality.
It is clear that the objection made by the applicant is related to the proof of material events and facts and the evaluation of the evidence. It is also seen that the decision to postpone the prosecution against the applicant is a decision that does not end the proceedings. In the light of these findings, there is no clear error of appreciation or arbitrariness in the Court’s decision to disregard the applicant’s defence in the reasoned decision.
In the concrete case, the terrorist organisation in question is the perpetrator of serious acts of violence in every region of Turkey in the last forty years. This terrorist organisation is the concrete symbol of the idea that it is necessary to realise an idea by violent means. The Constitutional Court considers that there is no distance between directly or indirectly praising, supporting or glorifying this organisation and encouraging the use of methods involving force, violence or threats. The Constitutional Court is of the opinion that the applicant’s action in the village where this terrorist organisation was founded and within the scope of the activities that are understood to have been tried to be traditionalised at the time of its establishment is in the nature of praising terrorism through historical and spatial symbols.
From the information and documents submitted to the application file, it has not been determined that the event in question was not peaceful and that the applicant was involved in an act of violence. Focusing on whether a statement of opinion incites the use of violence or armed resistance or insurrection as a criterion for determining whether it incites violence or armed resistance or insurrection would be an approach that ignores the difficulties associated with the fight against terrorism and is far from reality. Propaganda has an important function in the process of first becoming sympathisers and then supporters and members of terrorist organisations. Moreover, the terrorist organisation subject to the application was and still is the planner and implementer of grave acts of violence at the time of the events.
Therefore, the applicant, who is a member of parliament and whose every move is monitored by his supporters, publicly declared that he not only adopted the ideology of the terrorist organisation but that he accepted the terrorist organisation as a whole without any ideological or methodological distinction; thus, he conveyed the message to his supporters that resorting to violence against the state was necessary and justified. With this act, the applicant caused the danger that the methods used by the terrorist organisation would be accepted by others.
The applicant was tried for more than three years, did not face any criminal conviction for the act in question and was placed under supervision for three years. Although it can be accepted that the existence of the case in question had a deterrent effect on the applicant, it can be said that the postponement of prosecution is a milder measure in terms of its effects compared to an enforceable prison sentence or a fine.
Within the scope of all these evaluations, it has been concluded that the interference with the applicant’s freedom of expression fulfils a compelling need and that the interference is proportionate in the face of society’s right to protect itself against acts of terrorism.
For the reasons explained above, the Constitutional Court decided that there was no violation of freedom of expression.
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