JUDGMENT ON FREEDOM OF EXPRESSION IN MEHMET ALİ AYDIN’S APPLICATION
The Constitutional Court in its plenary sitting on 4/6/2015 held in its judgement on individual application of Mehmet Ali Aydın (App. No: 2013/9343) that the applicant’s freedom of expression was violated by the judgment of the first instance court deferring the prosecution in criminal case filed against the applicant for his expressions in a press statement and releasing the applicant on probation.
On the date of incident, the applicant was Peace and Democracy Party’s (BDP) Diyarbakır Province Chairperson.
The applicant made a press statement in Diyarbakır province on 15.02.2010 on the occasion of the anniversary of Abdullah Öcalan’s arrest in Kenya and transfer to Turkey and criticized the government policies in solving the “Kurdish problem”. According to the applicant, in solving the Kurdish problem the government was unwilling to address Abdullah Öcalan but, despite the negative attitude of the government authorities, Öcalan has become an important actor of the process today. The applicant also stated that, while the international powers were planning a chaos in Middle East, Öcalan prevented these chaos plans by developing solution proposals under the negative prison conditions. The applicant called for improving the prison conditions of Öcalan, ceasing the military operations and government’s consideration of Öcalan’s suggestions and realizing the democratization.
The applicant was arrested on 23/2/2010, after this press statement, on charges of propagandising and committing crime in the name of illegal organization.
Chief Public Prosecutor's Office of Diyarbakır filed a criminal case against the applicant with its indictment dated 26/2/2010 on charges of “propagandising of an illegal organization” and “committing crime in the name of an illegal organization without being its member”.
The court ruled for the deferment of prosecution relating to propagandising of an illegal organization in accordance with Law Nr. 6352 which entered into force during the course of proceedings; and that there is no place for a punishment on charges of committing crime in the name of organization in accordance with Law Nr. 6459.
The applicants alleged that his release on probation for the opinions he expressed in the press statement was a violation of his freedom of expression.
The Court's assessment
The Constitutional Court first examined whether the ruling for deferment of prosecution, although the applicant is not convicted, constitutes an interference to his freedom of expression or not. In Court’s opinion, the concerns for being subject to sanctions have an interruptive effect on people and, although the person concerned is likely to be acquitted from the charges against him, it is probable that the person under the effect of such concerns may refrain him from expressing his opinions or engaging in press activities. In this aspect, it must be taken into account that, as the applicant is a politician, he may have a risk to be subject to prosecution and proceedings due to the opinions he may express or his political activities in future and that the deferred prosecution that is subject to this application may be reinitiated as well. Therefore, it must be admitted that there is an interference to the freedom of expression of the applicant within the context of Article 26 of the Constitution.
The Court notes it is beyond any doubt that the freedom to make speeches and press statements in peaceful demonstrations is an integral part of the freedom of expression. The Court points that the opinions expressed by the applicant in his press statement are related to social issues concerning a part of the society, that the public authorities have limited margin of appreciation in restricting the political speeches on public interests and debates on social problems. On the other hand, public authorities have a broader margin of appreciation on issues that draw the borders of this freedom such as racism, hate speech, war propaganda, incite violence/provocation, call for insurgency or attempt to justify terrorist activities.
The Court recalls that examination of statements in isolation of their contexts may be misleading in carrying out a reasonable assessment of the findings obtained. Therefore, the Constitutional Court examined the concrete application as a whole together with the statements on PKK terrorist organization and Abdullah Öcalan and the context in which such statements are made, the identity of the speaker, the timing and the purpose of the statements subject to application, the identity of addressees, possible effects of the statements and other expressions in the press statement. The Court focused on the content of the opinions propounded in the said press statement and the context in which such opinions were expressed. The Court assessed whether the interference was “expedient to aims pursued” and whether the reasons argued by the public authorities were“relevant and sufficient”.
In Constitutional Court’s opinion, the first instance court did not assess in its ruling which statements of the applicant promoted violence or provoked and incited the persons to adopt terrorist methods, resort to violence, hatred, take revenge or armed insurgency. The Constitutional Court examined the applicant’s statements as a whole and concluded that the statements of the applicant did not promote violence and terrorist activities or incite the persons to adopt terrorist methods, resort to violence, hatred, take revenge or armed insurgency. In Court’s view, the opinions which are unpleasant to public authorities or a certain segment of society can not be restricted unless they incite violence, attempt to justify the terrorist activities and support hatred.
The Court emphasized that, although the applicant’s prosecution is deferred, the interference to applicant’s freedom of expression can not be described as a restriction expedient to the legitimate aim pursued as the applicant’s risk of being subject to prosecution or being punished again continues to exist. The Court reached a conclusion that the said restriction is not necessary in a democratic society. Consequently, the Court ruled that the applicant’s freedom of expression guaranteed under Article 26 of the Constitution has been violated.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.