Press Release Nr: BB 2/15
12/5/2015

JUDGEMENT ON FİKRİYE AYTİN AND OTHERS

The First Section of the Constitutional Court unanimously held in its judgement on Fikriye Aytin and Others (App. No: 2013/6154) published in the Official Gazette dated 12/5/2015, that Articles 26 and 38 of the Constitution were violated.  

Emphasizing the vital importance of freedom of expression for the functioning of a democracy, the Constitutional Court noted that the language used in the communication of expression is also an inseparable part of freedom of expression and The Court concludes that punishment of applicants on the basis of an annulled law provision violates freedom of expression and the principle of legality of crimes and punishments as that the intervention did not meet the condition of lawfulness.

The applicants are Fikriye Aytin, Ali Şimşek and Sevi Demir. The application is concerned with the allegations of violation of freedom of expression and the principle of the legality of crimes and punishments.

Facts

On the date of incidents, applicant Fikriye Aytin was mayor of Lice District, applicants Ali Şimşek was Provincial Head of Democratic Society Party (DTP) in Diyarbakır and applicant Sevi Demir was a member of the DTP Women’s Assembly.

An investigation was started by the Chief Public Prosecutor's Office of Lice district regarding the applicants as the applicants made speeches in Kurdish language during a publicity meeting organized by DTP in Lice district for the introduction of their candidates before the local elections held in 2009 and a public case was filed for the punishment of applicants. As the proceedings against the applicants continued, the Constitutional Court, with its judgment in 2012, repealed Article 117 of Law Nr. 2820 on Political Parties which imposes punishment for those who use a language other than Turkish in the activities of the political parties. Despite the annulment decision of the Constitutional Court, Criminal Court of First Instance of Lice continued the proceedings. The Court decided that the applicants be sentenced to 5 months imprisonment separately and that the announcement of the verdict be deferred. The appeals by the applicants were rejected; the judgment was finalized in 2013.

Allegations

The applicants alleged that their freedom of expression and the principle of legality of crimes and punishments were violated by indicating that, although Article 117 of Law Nr. 2820 was repealed by the Constitutional Court, they were punished for making speeches in Kurdish language during a publicity meeting organized by DTP for the introduction of their candidates.

The Court’s assessment

With regards to freedom of expression

Emphasizing the vital importance of freedom of expression for the functioning of a democracy, the Constitutional Court notes that the language used in the communication of expression is an inseparable part of freedom of expression. The Court concludes that punishment of the applicants for making speeches in Kurdish language is an intervention to freedom of expression. As this intervention does not meet the criteria of legality, the Court finds a violation of freedom of expression guaranteed under Article 26 of the Constitution.

With regards to the principle of legality of crimes and punishments

The Court concludes that punishment of the applicants on the basis of a legal provision which is no longer in force, violates the principle of “legality of crimes and punishments” guaranteed in Article 38 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2015
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