Individual Application 40/19
Press Release concerning the Judgment Finding a Violation of the Freedom of Expression for Being Sentenced to Imprisonment due to the Expressions on a TV Show
On 9 May 2019, the Second 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 Ayşe Çelik (no. 2017/36722).
The applicant previously serving as a contract teacher joined a national-scale live TV show by phone and made certain explanations by primarily asking “Are you aware of the events taking place in the east and the south-east of Turkey?” during a period when the violent acts known to public as “ditch events” were taking place.
A criminal case was brought against her for allegedly making terrorist propaganda on account of her expressions during the TV show. The incumbent assize court hearing the case sentenced her to 1 year and 3 months’ imprisonment. She appealed against the conviction decision before the Regional Court of Appeal which ultimately dismissed the application on its merits with final effect.
The Applicant’s Allegations
She maintained that her freedom of expression had been violated, stating that she had not used any expression justifying or inciting violence or hatred but, to the contrary, used peaceful expressions.
The Court’s Assessment
With the intent of disseminating their thoughts and deepening their ideas within the society, terrorist organizations may use every means to realize their objectives. Propaganda of terrorism or terrorist organizations is undoubtedly one of these means.
However, the Turkish law considers as an offence not any expressions of thoughts in relation to terrorism but merely the act of disseminating propaganda of terrorist organizations in a way to justify, praise, or incite recourse to, their methods involving force, violence or threat.
Expression of thoughts even those related to terrorism or terrorist organization or those in parallel to terrorist organization’s ideology, social or political goals as well as its opinions on political, economic and social issues cannot be considered as a terrorist propaganda as long as they do not involve statements encouraging recourse to violence and lead to the risk of committing terrorist offences.
Expression and dissemination of thoughts as to social and political environments or socio-economic imbalances, ethnic problems, discrepancies in the country’s population, demand of more freedoms or criticism about the regime as well as instilment and inspiration of such thoughts to others in an active, systematic and convincing manner fall under the protection of freedom of expression, even if they disturb the State or any sector of the population.
In the present case, according to the first instance court, the applicant had idealized and justified the violent acts performed by the terrorist organization, had called for people to sympathise with the terrorist organization as well as had created the impression that the operations conducted by the security officers against terrorists had been targeting civilians and had led to the deaths of infants and children. Therefore, the first instance court considered that her expressions amounted to dissemination of propaganda in favour of the terrorist organization.
Given the context of the applicant’s opinions and background of the events taking place at the material time, the Court disagrees with the first instance court having convicted her. In her speech, the applicant aimed at raising public awareness on the deaths occurring in the eastern and south-eastern parts of Turkey and requested the celebrities attending the TV show not to remain indifferent to those events. She further maintained that the events taking place in the zones of armed clashes had been conveyed to the public differently; and that there had been no public awareness as to the difficulties experienced by women and children affected by the clashes. She indeed made a call for raising public awareness in order for stopping the clashes whatever the reasons thereof. It is undoubted that the impugned speech concerned a matter of public interest.
The Court has not viewed the applicant’s expressions as a praise of, or a support for, terrorism or as a direct or indirect incitement to violence, armed resistance or uprising. In the circumstances of the instant case, the applicant was not considered, due to her expressions, to have praised the members of the terrorist organization clashing with the security officers during the ditch events, to have particularly inspired hatred against the security officers directly involved in the clashes or encouraged recourse to violence.
It has been regarded that through her speech, the applicant did not aim at increasing political or social efficiency of a terrorist organization, ensuring her voice to reach the masses, or fostering public conviction that the organization was an insuperable power that was capable of achieving its ultimate goal. Nor did she intend to eliminate or suppress individuals and institutions that were against the organizational struggle, to increase public sympathy as well as to ensure active public support for the organization. It has therefore been concluded that the impugned interference was incompatible with the requirements of 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.