5/7/2019

Individual Application 61/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to Dismissal of the Request for Registration of a Movie

On 8 May 2019, the First Section 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 Mehmet Ali Gündoğdu and Mustafa Demirsoy (no. 2015/8147).

The Facts

One of the applicants is the producer and director of the cinematographic work, “Adressiz Sorgular (Unaddressed Queries)”, and the other is his co-partner. Theme of the impugned movie is, inter alia, a series of political and social issues which are considered as the “Kurdish Question” by the director.

The applicants filed an application with the relevant Ministry for registration of their work as a movie. However, the Ministry dismissed their request, indicating that “the impugned work of art is incompatible with public order and the other principles enshrined in the Constitution as well as with human dignity”. The applicants then filed a case with the incumbent administrative court, requesting the nullity of the Ministry’s decision as well as registration of their work of art as a movie.  

 The impugned movie was found, upon the expert’s examination, unfit for commercial circulation and projection, and the administration court accordingly dismissed the case. Following the appellate process, the first instance decision was upheld by the Council of State and ultimately became final.

The Applicants’ Allegations

The applicants maintained that their freedom of expression had been violated due to dismissal of the request for registry of their work of art which should have been qualified as a movie.

The Court’s Assessment

It appears that in the impugned work of art, expressions such as “”guerrilla” and “freedom fighter” and torture scenes are frequently used in the context of -from the director’s point of view- the “Kurdish question”, which create the impression that members of a terrorist organization have been sympathized with.

The work of art explains the regional effects of the troubles encountered due to the conflicts taking place, cases of unsolved murders, as well as expresses the aspiration for peace with an emphasis on the fact that the Kurds have done everything to preserve their language and culture. In the examination of this application, the expressions as to the PKK terrorist organization, nature of the impugned work as a movie, the period when it was shot, its aim, the section of the society and the geography it appeals to as well as its possible effects were taken into consideration as a whole.

Terrorism, or the “Kurdish question” from the director’s point of view, is a problem which has been creating agony in our country for years. The Court is aware of the delicate nature of this question. However, it must be borne in mind that theme of the impugned work has attracted attention to problems taking place in a certain region of the country.

Regard being had to the work of art as a whole, it has been observed that it has no element praising any terrorist organization, romanticizing, inciting or justifying violence but rather tries to introduce a different perspective to terrorist problem. Raising an allegation, in this work of art, that the State has displayed biased attitude towards those who are living in that geography should not be interpreted as disseminating a terrorist propaganda. Besides, there are several dialogues and scenes which indicate that both parties are equally affected by the trouble and grief that have been undergone due to these terrorist acts and the conflicts.

It has been further observed that the impugned work expresses the aspiration for peace and emphasizes the fact that the peace of both Turks and Kurds living in unity on the same land for centuries has been disturbed by the State policies.

As a matter of artistic discourse, the dialogues included therein were not considered as a terrorist propaganda but as a tragic and ironic expression of the sad events.

Prohibition of the work by way of dismissing the request for its registration is a pre-censor which amounts to the severest interference. Its public distribution was forbidden although the public authorities should have resorted to alternative means such as introducing an age limit of +18, watching the movie with family or removal of certain scenes from the film script.

The first instance court failed to show the best interests inherent in the maintenance of public order and constitutional principles vis-à-vis the applicants’ freedom of expression, as well as to consider the work as a whole and to discuss its discourse, the expressions and the scenes included therein. 

The justification relied on by the first instance court by way of extracting certain expressions out of the context of the work was not considered relevant and sufficient, and its prohibition was not found necessary in a democratic society. 

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.