Individual Application 77/19
Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to Conviction of the Academics Signing a Declaration
On 26 July 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 Zübeyde Füsun Üstel and Others (no. 2018/17635).
A group of academics issued a declaration seeking to end the curfews and clashes during the operations carried out within the scope of the fight against terrorism in the East and Southeast of Turkey between 2015 and 2016. Applicants, who are academics at different universities also signed this declaration in order to support the other signatory academics.
After it had been issued, the declaration was criticized heavily. Criminal investigations were launched and subsequently criminal cases were initiated against the signatory academics, as well as some of them were dismissed from their offices. The applicants’ challenges against the decisions on their conviction at the end of these proceedings were also dismissed.
The Applicants’ Allegations
The applicants maintained that their freedom of expression was violated on account of their conviction of spreading terrorist propaganda as they had signed a declaration issued by a group of academics.
The Court’s Assessment
The Constitutional Court is aware of the concerns about the expressions and acts that might deteriorate the security situation in the region where the terrorist incidents leading to the loss of lives have occurred and required the declaration of a state of emergency in the large part of the country, for the last forty years.
The Constitutional Court is also aware of the fact that the impugned declaration had been prepared unilaterally and from a certain perspective and that it included exaggerated comments, as well as some offensive and vicious expressions against the security forces. The Constitutional Court’s consideration that this declaration should fall under the protection of the freedom of expression set out in Article 26 of the Constitution does not mean that it shares and supports the thoughts and ideas stated in the declaration.
The content of the declaration signed by the applicants is indeed unacceptable for the majority of the society. It is of course not possible to support a statement charging the State that fights against terrorism with “massacring”, “slaughtering” and “torturing” the people.
However, the expressions that are in no way supported by the Constitutional Court may also fall within the scope of the freedom of expression. In the assessment of whether an expression or statement fall under the freedom of expression, it shall not be decisive whether these expressions and statements are accurate or disturbing. At this point, it should be assessed whether the used expressions legitimize, praise or incite the violent and threatening methods of the terrorist organization.
The fact that an expressed thought heavily criticizes the authorities, that it has been written in an accusatory and severe language and even that it is unilateral, contradictory and subjective does not necessarily mean that it incites violence, poses a threat to the society, the State and the democratic political order, thereby encouraging people to carry out unlawful acts.
Undoubtedly, the limits of permissible criticism are wider with regard to the government than in relation to an individual. It is normal that the operations conducted against a terrorist organization within 11 cities for about 10 months and having a bearing on lives of millions of people have attracted public attention and undergone various assessments and comments.
It is evident that the thoughts reflected in the declaration signed by the applicants are explicitly different from those adopted by the majority of the society, which for this very reason entails the need to act with delicacy in showing judicial reaction to such kind of expressions. That is because such interferences impose a severe restriction on the public’s right to be informed of a different perspective on the particularly significant events taking place in the country, no matter how difficult it is for the majority of the society to embrace this point of view.
It must be prescribed that severe criticisms may be directed towards the public authority conducting the impugned operations, as a result of which the declaration was signed, and a higher degree of tolerance must be shown to such criticisms as a requirement of democratic pluralism. In the light of all this information, it has been concluded that the applicants' conviction was not necessary in a democratic society on the basis of a pressing social need.
Besides, the applicants were sentenced to imprisonment. However, the pronouncement of the conviction decisions rendered in respect of the applicants, except for one of them, was suspended, and the applicants were accordingly released on conditional bail.
Given the particular circumstances of the present case, it has been concluded that the interference imposed on the applicants –despite the suspension of the interference as regards certain applicants– could not be proven to be proportionate to the aim of maintaining public order inherent in the fight against the terrorist organization in question and terrorism.
Authorities exercising public power are afforded more opportunity, in responding to the criticisms against state policies, than anyone else in the country. Particularly in cases where it is possible to address unjust attacks and criticisms of the opponents through different means even if they appear to be highly unreasonable and irrelevant, criminal proceedings must not be resorted to.
Consequently, the Court has found a violation of the freedom of expression safeguarded by Article 26 of the Constitution.
This judgment is subject to editorial revision before its reproduction in final form to be published in the Official Gazette together with the appended dissenting opinions.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.