JUDGEMENT ON FREEDOM OF COMMUNICATION IN EREN YILDIZ’S APPLICATION
(Click for full text of judgment)
The Second Section of the Constitutional Court in its meeting on 7/7/2015 held in its judgement on individual application of Eren Yıldız (App. No: 2013/759) that the applicant’s freedom of communication was violated with regards to seizure by the prison administration of one of the letters sent to the applicant, who is a convict in prison, and that there was no violation with regards to the other letter seized by the prison administration.
The letter sent to applicant, who is a convict for the crime of “attempting to change constitutional order by force and being a member of the Revolution Party of Turkey (“TDP”)”, was considered to be inappropriate by the Disciplinary Board of the Prison Administration and, therefore, the said letter was not delivered to the convict.
The objection against such decision of the disciplinary board was dismissed by the relevant courts.
The applicant stated that the letter in question was sent by his friend who was in prison at the relevant time; that if there had been any unfavourable statement in the letter, then the relevant prison administration would not have allowed it to be sent; that he was deprived of his means to exchange opinions. He also stated that the decisions rendered did not clearly indicate which statements in the letter were found unfavourable and propaganda of which organization was made. Accordingly, he alleged that his freedom of communication and right to defence were violated.
The Court's Assessment
The Constitutional Court reviewed the applicant’s allegations under the scope of the freedom of communication secured under Article 22 of the Constitution.
In the Constitutional Court’s opinion, while reviewing the interferences to the freedom of communication, the legislation forming a legal basis for the interference must be “accessible”, adequately explicit and “foreseeable” in respect of results led by a certain act. The Court also emphasized that the interference in question must pursue “a legitimate aim”. And it must be proportionate and necessary in a democratic society.
In reviewing the present case, the Court qualified the seizure by the prison administration of the letters sent to the applicant as an interference to the freedom of communication. Later on, the Court concluded that Article 68 of Law No.5275 which constitutes the basis of interference meets the criteria of “lawfulness” and that the interference pursues the legitimate aim of public order and prevention of crime as regulated under Article 22 of the Constitution. In reviewing whether the said interference is proportionate and necessary in a democratic society, the Court considered that there were two separate letters sent to the applicant in the same envelop by the same person.
In the Court’s opinion, the first letter sent to the applicant praises the actions of an ex-leader of an illegal organization and, while describing the said actions, draws a framework of the illegal organization’s aims and directs the addressee to such aims. In line with these aims, the armed attacks, violent content of which are beyond dispute, are justified and qualified as “fight” and even “war”. By indicating that this war is still going on, violence is being promoted by means of formulating the illegal organization leader’s illegal acts and actions as “ordinary course of conduct”. Within the frame of these findings, the Constitutional Court concluded that seizing the first letter on the grounds that it incites crime is not contrary to the requirements of the democratic order of the society and the principle of proportionality. Accordingly, the Court concluded that the applicant’s freedom of communication has not been violated in respect of the first letter.
However, in respect of the second letter in which a convict mentions on his days in prison, other convicts he is staying with, his family life and state of health, it could be deduced neither from the content of the letter nor from the justifications given by the Disciplinary Board of the Prison and the relevant courts which statements included in the letter were unfavourable. The Court concluded that seizing of the second letter for the pursued aims is not necessary in a democratic society and, accordingly, that the applicant’s freedom of communication has been violated in respect of the second letter.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.