Individual Application 20/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to the Punishment for the Slogan Chanted under Police Custody

On 7 February 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 Deniz Benol and Others (no. 2014/18780).

The Facts

The on-duty police officers arrived in an apartment resided by the Association of Communion and Solidarity (Paylaşma ve Dayanışma Derneği) in order to enforce the arrest, search, seizure and inspection order issued by the incumbent assize court with respect to the social events taking place during the activities held on the occasion of the May 1 Labour and Solidarity Day.

A quarrel took place between those who were present in the association’s apartment and the police officers seeking to carry out an identity check and search. In the meanwhile, the police officers identified and arrested one of the applicants against whom an arrest warrant had been issued. While this person was taken to the police station, the applicants resisted the police officers, and there occurred a physical contact between the parties.

The police officers took into custody the applicants preventing the duly enforcement of the court order and displaying offensive behaviours. During and after their custody, the applicants chanted slogans, within the police vehicles, against the police officers.

On the criminal complaint filed by the police officers involved in the operation, the chief public prosecutor’s office initiated an investigation at the end of which the applicants were indicted.  

The incumbent criminal court sentenced the applicants to imprisonment for insulting the on-duty police officers and resisting them in order to prevent them from performing their duties, but suspended the pronouncement of the verdict.

The applicants’ challenged the decision; however, their challenge was dismissed by the relevant assize court.  

The Applicants’ Allegations

The applicants alleged that their freedom of expression had been violated, maintaining that the slogans they had chanted during their custody did not contain any insult or threat against anyone.

The Court’s Assessment

Freedom of expression means that everyone is entitled to freely have access to news, information and others’ ideas and to freely express, explain, defend, convey and disseminate, either alone or together with others, his thoughts and convictions through several means, as well as being exempted from any condemnation on account of them.   

An interference with fundamental rights and freedoms may be considered compatible with requirements of the democratic order of the society only if it meets a pressing social need and is proportionate.

In the present case, the Court found admissible the alleged violation of the freedom of expression due to the decision rendered with respect to the act of insulting but found manifestly ill-founded the other alleged violations insofar as they related to the decisions rendered with respect to the other acts.

In the instant case, the applicants chanted slogans “Killer police will account for (“Katil polis hesap verecek”); we will overcome by keeping on resistance (Direne direne kazanacağız); oppression cannot intimidate us (Baskılar bizi yıldıramaz)” while being taken into police custody.

The reasoning parts of the inferior courts’ decisions did not include any satisfactory explanation. However, it was acknowledged therein that as the said slogans had been chanted not during a demonstration but during the police custody and in the face of the on-duty police officers, the phrase “Killer police” in the slogans were insulting the police officers in question. Therefore, the applicants were punished; however, the pronouncement of the verdict was suspended.

The said slogans were chanted during the applicants’ arrest and custody by the police. It has been therefore considered that the slogan “Killer police will account for”, which has a disturbing effect when considered in terms of its lexical meaning, was chanted −from the point of view of the applicants−   for the purpose of criticising the conducts of the law enforcement officers.

It is also questionable whether the slogan leading to the punishment of the applicants for the act of insulting was directed towards the on-duty police officers. Stereotyped slogans chanted during arrest and custody are frequently used in cases when demonstrators protesting collectively encounter with law enforcement officers. In this respect, the slogan “Killer police will account for” was considered to be of a general nature and not to be directed towards the honour and dignity of the on-duty police officers. It has been accordingly concluded that the inferior courts failed to take into consideration the particular circumstances of the impugned incident; and that the words considered as an insult were assessed without the context in which they had been used being taken into account.

Nor did the inferior court convincingly demonstrate in its decision that the applicants’ punishment corresponded to a pressing social need and was therefore, in terms of the restriction imposed on the freedom of expression, compatible with the requirements of the democratic order of the society. It has been accordingly concluded that the grounds relied on by the first instance court could not be considered as a relevant and sufficient justification for the interference with the applicants’ freedom of expression.

Consequently, the Court 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.