Violation Of The Applicant’s Right To Be Elected And To Engage In Political Activities And Freedom Of Expression
Events
An indictment was issued by the Chief Public Prosecutor’s Office on the grounds that the applicant committed the crime of making propaganda for a terrorist organization by sharing a news article on his social media account and a public case was opened against the applicant on 4/8/2017. The Assize Court (Court) sentenced the applicant to 2 years and 6 months imprisonment for the imputed offense. The applicant appealed against the decision. While the appeal was pending, the applicant was elected as an MP from the Peoples’ Democratic Party (HDP) on 24/6/2018 and applied to the Regional Court of Justice, where his file was located, for the suspension of the proceedings against him pursuant to the second paragraph of Article 83 of the Constitution. The Regional Court of Appeals decided to reject the applicant’s application for stay of proceedings and the appeal on the merits.
While the finalized sentence of the applicant was in the execution phase, the right of appeal was introduced by Law No. 7188 and the applicant appealed; the Court of Cassation, which examined the appeal, rejected the applicant’s request for a stay of proceedings and the objections on the merits and upheld the conviction. When the verdict was read at the General Assembly of the Grand National Assembly of Turkey (TBMM) on 17/3/2021, the applicant’s parliamentary seat was revoked. Upon the loss of his parliamentary seat, the Ankara Chief Public Prosecutor’s Office initiated the execution of the conviction against the applicant and the applicant was placed in the Penal Execution Institution on 2/4/2021.
Allegations
The applicant claimed that his right to be elected and to engage in political activity was violated by the continuation of the proceedings against him despite the fact that he was elected as an MP and gained the right to immunity, and that his freedom of expression was violated by being sentenced for making propaganda for a terrorist organization on the grounds of a post he made on his social media account.
The Court’s Assessment
A. Alleged Violation of the Right to Be Elected and to Engage in Political Activity
1. Regarding the Scope of the phrase “the situations specified in Article 14 of the Constitution” in the Second Paragraph of Article 83 of the Constitution
In Turkish law, the basic framework of legislative immunity is regulated in the second paragraph of Article 83 of the Constitution and guarantees that MPs cannot be held, interrogated, arrested and tried without the decision of the Turkish Grand National Assembly. However, the Constitution does not regulate legislative immunity in absolute terms, and some exceptions and limitations have been introduced to legislative immunity in Article 83 of the Constitution. In the second paragraph of Article 83 of the Constitution, “the cases specified in Article 14 of the Constitution, provided that the investigation has been initiated before the election” are also excluded from the scope of immunity.
The text of the first paragraph of Article 14 of the Constitution is not suitable for interpreting the phrase “the cases in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, and therefore the crimes excluded from legislative immunity due to falling within the scope of the first paragraph of Article 14 of the Constitution, in a meaningful way by the decisions of the judicial organs alone, thus ensuring certainty and predictability.
Considering the practice and tradition of the Parliament, it cannot be reasonably expected that the applicant, who is an MP, could reasonably foresee that the judicial authorities would determine that he did not have legislative immunity during his term of office, even if the investigation was initiated before his election as an MP, which would interfere with his freedom of expression.
When all these issues are evaluated together, based on the third paragraph of Article 14 of the Constitution and the provisions of the third paragraph of Article 67 of the Constitution regulating the right to elect, to be elected and to engage in political activity, it is concluded that it is not possible to ensure certainty and predictability with the interpretations made by the judicial bodies other than the regulation of the legislator regarding which crimes fall within the scope of the phrase “situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution.
2. In terms of the Judicial Bodies’ Determination of the Absence of Legislative Immunity
In the method of determining the absence of legislative immunity due to a criminal investigation and prosecution within the scope of the circumstances under Article 14 of the Constitution, the Constitutional Court has set out a series of principles for determining the seriousness of the allegation based on the Constitution.
Interpreting Articles 67 and 83 of the Constitution together, the Constitutional Court listed the assessments that the competent judge or public prosecutor must make regarding the seriousness of the allegation in order to make a decision on the absence of immunity.
The Regional Court of Appeals and the Court of Cassation accepted that the crime of propaganda for a terrorist organization charged against the applicant was one of the crimes falling within the scope of one of the “situations under Article 14 of the Constitution” without making any assessment in terms of the specified criteria.
In cases similar to the applicant’s case, the duty of the courts is not limited to determining whether the alleged offense falls within the scope of one of the “circumstances under Article 14 of the Constitution” before proceeding with the trial, but to determine whether the seriousness of the allegation, as stipulated by the Constitution for other circumstances that lift legislative immunity, is present.
A contrary stance is incompatible with the logic of the institution of immunity and the safeguards it seeks to provide, and leads to courts not making any of the assessments that should be made on the merits, such as whether the accusations are serious enough, whether the investigations and prosecutions are politically motivated, or whether they are disproportionate to the importance of legislative immunity. This shows that it is impossible to obtain results from the objections to be made in the event of a determination of non-existence of immunity by the judicial authorities.
The method of determining the absence of immunity does not include all procedural safeguards that regulate the discretion of the judicial authorities and prevent arbitrary behavior. The current method does not include a procedure that obliges the judicial authorities to assess whether the interference with legislative immunity corresponds to a compelling social need and whether it would be proportionate – at the level of the guarantees provided in the procedure for lifting immunities by the Parliament.
It is clear that the current system, which does not contain adequate safeguards to ensure legislative immunity, prevents MPs elected to the legislative body from freely expressing the views of the public and, in this sense, the participation of certain individuals or groups in the political life of the country, thus eliminating the effect of their right to be elected and to engage in political activity.
Article 83 of the Constitution, which protects legislative immunity, and Article 14 of the Constitution, which prohibits the abuse of fundamental rights and freedoms, can only fully fulfill their functions if they are interpreted in the context of the protection of democracy and on the basis of rights. Courts do not interpret these constitutional provisions in favor of freedoms, nor is there a legal system with substantive and procedural safeguards to encourage them to do so.
The Constitutional Court concluded that the applicant’s conviction after being elected as a deputy and having legislative immunity in general violated the applicant’s rights protected by Article 67 of the Constitution and that the violation stemmed from the absence of a constitutional or legal arrangement that has basic guarantees for the protection of legislative immunity, the right to be elected and to engage in political activity and that ensures certainty and predictability.
For the reasons explained, the Constitutional Court ruled that the right to be elected and to engage in political activity was violated.
B. Alleged Violation of Freedom of Expression
Any expression of opinion – even if made by terrorist organizations or their members – cannot be categorically excluded from the scope of freedom of expression, subject to an assessment independent of the content, context and objective meaning of that expression. It should be underlined that the mere fact that a statement belongs to an illegal organization does not automatically justify the interference with freedom of expression.
In the concrete case, it is seen that a news article of a news website -which is still accessible- was shared on social media, and in the content of the said news article, it was emphasized that the PKK issued a statement and stated that if steps were taken in this statement, “peace would come in 1 month and the longing for a solution in brotherhood would be realized”. The news article also gave detailed coverage to the views of the Parliamentary Group Deputy Chairman of a political party and the former Deputy Prime Minister and former Speaker of the Grand National Assembly.
News article in question did not contain any expression that could be interpreted as incitement to violence or that could directly or indirectly lead to the danger of committing a terrorist offense. Way the applicant shared the news and the sentence he used while sharing the news did not contain any expression that could be interpreted as incitement to violence. In the post in question, the applicant stated that the statement of the terrorist organization that the solution process should start again should be evaluated.
In addition, the photograph included in the news article shared by the applicant should not be evaluated independently from the news content in which it was used in the concrete case. First of all, it should be noted that the photograph was used in the news article. Considering that there is no incitement to violence in the language used in the news article, it can be said that the purpose of using the photograph in question, when evaluated together with the way it was used and its context, was not to legitimize, praise or encourage the methods of the terrorist organization involving force, violence or threats, but to add attract attention and credibility to the news as a news-making technique -as is commonly used in national publications. It is observed that the photograph in the news article is frequently used in national print and visual media outlets.
The intervention in the sharing of the news article subject to the concrete application, which contains a statement that does not contain expressions that can be interpreted as incitement to violence, “qualified as the ownership of the statement” on the grounds that the statement belongs to an illegal organization or a criminal, constituted a violation of freedom of expression. Accepting the reporting of a statement of a terrorist organization, which there is no doubt that it is newsworthy, together with the views of opposing politicians, as “trying to legitimize the terrorist organization” may make it impossible for the press to fulfill its basic duties and journalism.
The applicant was penalized for merely sharing a previously published news article on a national online news website. It was ignored that at the time of the sharing in the present application, the statement of the terrorist organization subject to the application had already been made public. It has not been established that any investigation was initiated or any measures were taken in relation to this news. The news that the applicant was penalized for sharing is still in publication. Therefore, considering that the news has not faced any accusation since its publication in 2016, it is understood that the circumstances assumed by the courts in their purposes regarding the punishment of the applicant do not exist in fact.
In this respect, it has been concluded that the interference with the applicant’s freedom of expression is not compatible with the requirements of the democratic social order.
For the reasons explained above, the Constitutional Court decided that the freedom of expression was violated.
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