Individual Application

The Facts

The applicants were tried in different criminal proceedings due to their participation in meetings organized on various dates and the statements of opinions had constituted offenses falling under criminal law and that they had committed these offenses on behalf of a terrorist organization. The applicants were sentenced for the offenses prescribed in the criminal laws corresponding to the acts imputed on them and they received sanctions of varying severity for committing offenses on behalf of the terrorist organization.

The Applicants’ Allegations

The applicants claimed that their freedom of expression and the right to hold meetings and demonstration marches had been violated due to their conviction for committing an offense on behalf of a terrorist organization without being a member of it on grounds of their participation in a demonstration march and statements of opinion.

The Court’s Assessment

The Court previously assessed and adjudicated a similar case involving alleged violations of freedom of expression and the right to hold meetings and demonstration marches due to the conviction of the applicant for committing an offense on behalf of a terrorist organization without being a member of it on grounds of his participation in a demonstration march and statements of opinion (Hamit Yakut, no: 2014/6548, 10 June 2021).

As a result of its assessment, the Court concluded that Article 220 § (6) of the Law no. 5237 was not, in its content, purpose, and scope, certain; it failed to afford protection to the applicants against the arbitrary interferences with their rights safeguarded under Article 34 of the Constitution; and thus, the interference stemming from the implementation of Article 220 § (6) of the Law no. 5237 did not comply with the requirement of lawfulness.

Additionally, the Court applied a pilot judgment procedure in order to ensure the resolution of similar cases by the administrative authorities instead of the Court’s finding of a violation in all respective cases after an examination, as well as the redress of the structural problem by eliminating the source of the violation. Accordingly, the Court decided to suspend the examination of the applications of a similar nature, which have been already or will be thereafter lodged before it, for a year starting from the date of promulgation of this judgment in the Official Gazette pursuant to Article 75 § (5) of the Internal Regulations of the Court.

Without any doubt, it is at the discretion of the legislative organ to introduce statutory arrangements for the fight against terrorism that forms an important aspect of the state policy. On the other hand, in the case of Hamit Yakut, the Court assessed the lawfulness of the interference within the scope of its constitutional duty and power and concluded that the impugned interference based on Article 220 § (6) of the Law no. 5237 had not been clear and foreseeable; and that therefore, the said statutory provisions should be amended.

The decision in the case of Hamit Yakut was promulgated on the Official Gazette no. 31557, dated 3 August 2021, and submitted to the legislative organ to take necessary actions for the resolution of the structural problems. However, during the prescribed period, there has been no statutory amendment to Article 220 § (6) of Law no. 5237. Nor has the legislator introduced a statutory regulation amending Article 220 § (6) of the Law no. 5237 in a way to ensure that it would be compatible with the principles enshrined in Article 13 of the Constitution, prevent arbitrary acts of public authorities, and would be accessible, foreseeable and certain. This situation resulted in the non-application of the requirements of the pilot judgment of the Court and the continuation of unlawful interferences with the freedom of expression and the right to hold meetings and demonstration marches of the applicants in the postponed applications.

In the present application, there is no ground for the Court to depart from the principles set out and the conclusion reached in its Hamit Yakut judgment. Consequently, the Court has concluded that the interference with the freedom of expression and the right to hold meetings and demonstration marches, which stemmed from the implementation of Article 220 § (6) of Law no. 5237 did not comply with the lawfulness requirement.

Consequently, the Court has found violations of the freedom of expression and the right to hold meetings and demonstration marches.