17 July 2018 Tuesday
Ferhat Üstündağ (no. 2014/15428, 17 July 2018)
The applicant attended the meeting held by the Democratic Society Party (“DTP”) with necessary permissions being obtained.
As noted in the expert’s report on the video footage of the incident, the applicant was among the group who were, at the meeting place, holding flags symbolizing terrorist organization and poster of its leader as well as chanting slogans in favour of the terrorist organization. He concealed his face in order not to be identified by the security forces. Thereafter, the incumbent chief public prosecutor’s office charged the applicant for making terrorist propaganda, and at the end of his trial by the relevant assize court, he was sentenced to one year’s imprisonment. Upon the appellate review, the first instance decision was upheld by the Court of Cassation. Thereupon, the applicant lodged an individual application with the Constitutional Court.
The Applicant’s Allegations
The applicant maintained that his being punished for attending a meeting held upon a political party’s call was in breach of his right to hold meetings and demonstration marches.
The Court’s Assessment
The Court examined whether the applicant’s being sentenced to one year’s imprisonment for covering his face in order to conceal his identity during the meeting in which a propaganda in favour of the terrorist organization had been disseminated was compatible with the requirements of a democratic society.
By the relevant provision of the Anti-Terror Law no. 3713, the legislator has intended to punish those who have wholly or partially covered their faces for concealing their identities at meetings and demonstration marches held for terrorist propaganda, as a measure to ensure peaceful meetings and demonstration marches, which is required by the obligations incumbent upon the State under Article 34 of the Constitution. The Court has accordingly concluded that the interference with the applicant’s right to hold meetings and demonstration marches satisfied the requirement of being limited by law.
The Court has acknowledged that the applicant’s punishment was a part of measures taken for maintaining public order and preventing commission of offences, which are among the grounds specified in Article 34 § 2 of the Constitution, and therefore pursued a legitimate aim.
In light of these findings, the Court first dealt with the question as to whether propaganda of the terrorist organization had been disseminated through the meeting held by the political. The Court then examined whether the applicant’s punishment for covering his face during the meeting in order to conceal his identity met a pressing social need, and whether it was proportionate.
Individuals are obliged to conform to certain tasks and responsibilities within the scope of Article 34. Accordingly, it has been observed in the present case that those who had attended the meeting and disseminated propaganda in favour of the terrorist organization by concealing their faces −even if not resorting to any act of violence− acted in breach of the tasks and responsibilities inherent in the right to hold meetings and demonstration marches, and they thereby abused this right. The Court has concluded that the assessment that the meeting became devoid of its peaceful nature in respect of those concealing their identities at the meeting for terrorist propaganda serves the purpose of ensuring effective and legitimate use of fundamental rights.
It has been concluded that the applicant’s acts and expressions correspond with the goals or orders of a terrorist organization. Therefore, imposing a punishment on the applicant, who had abused his right to assembly protected under the Constitution, meets an urgent social need.
By punishing the applicant, the authorities have aimed to prevent the acts of violence adopted as a method by the terrorist organization, PKK, as well as to restrain individuals acting in a manner which would lead to continuance of, and increase in, violence posing a serious threat to the democratic order. Regard being also had to the discretionary power of the public authorities and the courts in balancing various interests, one year’s imprisonment imposed on the applicant was found proportionate.
As a result, the interference with the applicant’s right to hold meetings and demonstration marches cannot be considered to be incompatible with requirements of a democratic social order.
For the reasons explained above, the Court found no violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution.