Individual Application 91/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to Conviction of an MP for Disseminating Terrorist Propaganda

On 3 October 2019, the Plenary of the Constitutional Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution in the individual application lodged by Sırrı Süreyya Önder (no. 2018/38143). 

The Facts

The applicant was a Member of Parliament at the time of the events giving rise to his application when the Government had been conducting a long-standing democratic initiative process in the country in order to cease the terrorist acts. The applicant played an active role during this process in his capacity as a spokesman of a political party delegation. He delivered a speech addressing a crowd of people who attended the Newroz celebrations while the democratic initiative process was pending. Upon the criminal complaint filed against him for disseminating propaganda in favour of a terrorist organization during the gathering, the incumbent Chief Public Prosecutor’s Office issued a motion requesting that the applicant’s parliamentary immunity be lifted. The motion was submitted to the Grand National Assembly of Turkey (GNAT). In the meantime, the terrorist organization performed increased acts of violence by June 2015, thereby nullifying the endeavours to maintain the democratic initiative process.

Provisional Article 20 was added to the Constitution by Article 1 of Law no. 6718, which was adopted by the General Assembly of the GNAT. Accordingly, the motions referred to the authorities specified in the provisional article were exempted from the scope of parliamentary immunity set forth in Article 83 of the Constitution. Therefore, in June 2016 the investigation file underlying the motion against the applicant was sent to the chief public prosecutor’s office which indicted the applicant for having disseminated terrorist propaganda on account of his certain remarks.  

At the end of the proceedings before the assize court, the applicant was sentenced to 3 years and 6 months’ imprisonment for disseminating terrorist propaganda on 7 September 2018. He then appealed his conviction before the Regional Court of Appeal which dismissed, with final effect, his appeal on the merits.

The Applicant’s Allegations

The applicant maintained that his freedom of expression had been violated due to his conviction of disseminating terrorist propaganda on account of his remarks during a gathering.  

The Court’s Assessment

The freedom of expression means an individual’s not being condemned on account of his views and convictions as well as his ability to freely express, explain, defend, convey to others and disseminate them.  

In the present case, the applicant’s conviction and imprisonment for disseminating terrorist propaganda on account of expressing his thoughts has explicitly constituted an interference with his freedom of expression. The impugned interference will be in breach of the freedom of expression, unless it complies with the conditions set out in Article 13 of the Constitution.

In this regard, it must be assessed whether the impugned restriction complied with the requirements of being prescribed by law, being justified by one or more of the justified grounds and not being contrary to the requirements of the democratic order of the society and the principle of proportionality, which are stipulated in the Constitution and applicable to the present case.

As noted in the Explanatory Note of the Council of Europe Convention on the Prevention of Terrorism, when considering whether any expression posed the danger that a terrorist offence might be committed, the nature of the addressee of the message, as well as the context in which the offence is committed shall be taken into account, and the significance and the credible nature of the danger should be considered in accordance with the requirements of domestic law.

In the same vein, the European Court of Human Rights has in its several judgments concluded that description of the terrorist organization’s head as the “Kurdish leader” did not per se incite to violence. In its examination as to the remarks of similar nature, the Court of Cassation also considered that in cases where the accused chanted slogans in favour of the founder of the terrorist organization, place where the impugned act was performed, conditions and those addressees, the audiences and the question whether the impugned act had the potential of activating the audiences must be taken into consideration.

The issue needed to be ascertained is whether the controversial explanations -such as remarks describing the terrorist organization’s head as a leader and praising him- incited to violence within the historical context as well as the context of the impugned speech as a whole. It must be borne in mind that the impugned speech was delivered within a context serving the purpose of increasing and improving the possibilities of ceasing violent acts in the country and resolving social problems through democratic negotiation processes. Accordingly, the applicant’s remarks cannot be regarded as an incitement to violence.

Another ground for the applicant’s conviction was the fact that he used the word “Kurdistan” in his speech. The meaning of the word “Kurdistan” can only be ascertained by considering it together with the expressions used throughout the speech as well as the specific circumstances in which the speech was delivered. Taken as a whole, in his speech, the applicant informed the crowd of the ongoing resolution process. Regard being had to the whole speech, it has been observed that in general a call was made for the continuation of the policies initiated with a view to resolving the problems through non-violent methods.

The first instance court that rendered the impugned decision concluded that the applicant “had attempted to create a negative perception about the legitimate and justified counter-terrorism operations carried out by the Turkish security forces”. Regarding an expression as a terrorist propaganda without demonstrating that it had incited to violence, with an abstract reference to the fact that a perception had been tried to be created, cannot be accepted as a legal assessment. The first instance court made no explanation as to which remark of the applicant had led it to this conclusion.

Considering the historical context of the applicant’s speech, the objective meaning of the words used by him and the entire speech as a whole, it has not been concluded that the applicant had supported the violent and threatening methods of the terrorist organization with a view to inciting others to commit the same offences.

In the circumstances of the present case, the relevant authorities failed to demonstrate that the fact that the impugned speech was delivered at a mass meeting, it appeared on the media and continued to be published on the internet had negative consequences for the State and the society as well as had a significant effect on the State’s anti-terrorism activities.

It has been considered that regardless of the language and style used, the impugned speech mainly concerned the demand for the successful conduct and termination of the ongoing resolution process at the material time. Accordingly, it is not acceptable that the applicant had delivered the relevant speech in order to enhance the political and social effectiveness of a terrorist organization, to make his voice heard to the masses, to establish the conviction that it was impossible to overcome the organization and that it could achieve its aim as well as to increase the sympathy of the people for the organization thereby seeking to provide the active support of the people.

It is obvious that the public authorities interfering with the remarks of the applicant who was an elected Member of the Parliament and an important actor of the ongoing resolution process at the material time had a very narrow margin of appreciation and that much more rigorous assessments were needed to be made.

The first instance court failed to provide relevant and sufficient reasons to justify that the applicant’s conviction served a pressing social need.

Consequently, the Court has found a violation of the freedom of expression safeguarded by Article 26 of the Constitution.

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