Press Release No: Individual Application 45/21
Press Release concerning the Judgment Finding Violations of the Right to Stand for Elections and Engage in Political Activities as well as Freedom of Expression of the Applicant, an MP
On 1 July 2021, the Plenary of the Constitutional Court found violations of the right to stand for elections and engage in political activities as well as freedom of expression, respectively safeguarded by Articles 67 and 26 of the Constitution, in the individual application lodged by Ömer Faruk Gergerlioğlu (no. 2019/10634).
The chief public prosecutor’s office indicted the applicant on 4 August 2017 for the offence of disseminating propaganda on behalf of a terrorist organisation on the ground of having shared news on his social media account. The incumbent assize court sentenced the applicant to 2 years and 6 months’ imprisonment for the imputed offence. Thereupon, the applicant appealed on points of law and facts against the assize court’s decision. In the course of the appeal proceedings, the applicant, who was elected as a member of parliament (MP) from the People’s Democratic Party (HDP) on 24 June 2018, filed an application with the Regional Court of Appeal, seeking a stay of proceedings pursuant to Article 83 § 2 of the Constitution. The latter dismissed the applicant’s request for stay of proceedings as well as his appeal on the merits with no right of further appeal.
Pending the execution of the applicant’s final sentence, he became entitled to lodge an appeal on points of law as per Law no. 7188. Having reviewed the applicant’s appeal, the Court of Cassation dismissed the applicant’s request for stay of proceedings as well as his appeal on the merits, and ultimately upheld the applicant’s imprisonment sentence. The applicant lost his status as an MP after his sentence had been read out at the Grand National Assembly of Turkey (GNAT) on 17 March 2021. Afterwards, the Ankara Chief Public Prosecutor’s Office took the necessary steps to proceed with the execution of the applicant’s sentence, and the applicant was placed in the penitentiary institution on 2 April 2021.
The Applicant’s Allegations
The applicant claimed that his right to stand for elections and engage in political activities as well as his freedom of expression had been violated on the respective grounds that the proceedings against him were continued even after he had been entitled to parliamentary immunity for being elected as an MP and that he was charged with disseminating propaganda on behalf of a terrorist organisation on account of a post he had shared on his social media account.
The Court’s Assessment
A. Alleged Violation of the Right to Stand for Elections and Engage in Political Activities
1. The scope of the phrase “cases specified in Article 14 of the Constitution” embodied in Article 83 § 2 of the Constitution
The basic framework of parliamentary immunity in the Turkish legal system is regulated in Article 83 § 2 of the Constitution where it is stipulated that MPs cannot be detained, interrogated, arrested or tried unless the GNAT decides otherwise. However, parliamentary immunity is not regulated in absolute terms under the Constitution. Article 83 introduces certain exceptions and limitations to such immunity. “Cases specified in Article 14 of the Constitution as long as an investigation has been initiated before the election”, as enshrined in Article 83 § 2 of the Constitution, are also excluded from the parliamentary immunity.
Article 14 § 1 of the Constitution does not allow to duly designate, and thereby to interpret in a way ensuring certainty and foreseeability, the phrase “cases specified in Article 14 of the Constitution” embodied in Article 83 § 2 of the Constitution, thus the offences excluded from the parliamentary immunity for falling within the scope of Article 14 § 1, solely through the decisions of judicial authorities. Considering the practice and tradition of the GNAT, the applicant, as an MP, cannot be reasonably expected to foresee during his term of office that the judicial authorities might conclude that he would not be entitled to parliamentary immunity, interfering with his freedom of expression, even if the investigation had been launched before his election.
In view of all above, with reference to Article 14 § 3, and Article 67 § 3 of the Constitution whereby the right to elect, to stand for elections and engage in political activities is regulated, it has been concluded that certainty and foreseeability cannot be ensured through the interpretations of judicial authorities, rather than a regulation introduced by the legislator, as to which offences fall within the scope of the phrase “cases specified in Article 14 of the Constitution” stated in Article 83 § 2 of the Constitution.
2. Denial of Parliamentary Immunity by Judicial Authorities
In determining that the parliamentary immunity is lifted on account of investigation and prosecution conducted into an offence falling within the scope of the cases set forth in Article 14 of the Constitution, the Court has set out a series of principles, in accordance with the Constitution, regarding the gravity of the accusation.
The Court has pointed to the assessments to be made by the competent judge or public prosecutor on the gravity of the accusation while deciding on denial of the parliamentary immunity, in view of Articles 67 and 83 of the Constitution together.
The Regional Court of Appeal and the Court of Cassation considered the offence of disseminating propaganda on behalf of a terrorist organization, which was imputed to the applicant, among the offences falling within the scope of one of the "cases specified in Article 14 of the Constitution", without making any assessment in view of the relevant criteria.
In similar cases, the courts are entrusted not only with determining whether the imputed offence falls within the scope of one of the "cases specified in Article 14 of the Constitution" before continuing the proceedings, but also with establishing whether the imputed offence has attained the level of severity required for the offences to fall within the cases stipulated by the Constitution, which enable the withdrawal of parliamentary immunity.
A stance to the contrary does not comply with the logic of the immunity procedure as well as the guarantees it seeks to ensure, and it also prevents the courts from making assessments on the merits, such as whether the accusations are serious enough, whether the investigation and prosecution processes serve political purposes, or whether they are disproportionate to the importance of parliamentary immunity. This is an indication of the fact that it is impossible to get a favourable result from the objections, if it is the judicial authorities to decide on the lack of the parliamentary immunity.
The method employed for denial of the immunity does not include all procedural safeguards which set out the margin of discretion granted to the judicial authorities and which are necessary to prevent arbitrary acts. This method, which does not afford guarantee to the same extent as in the procedure where the authority to decide on the withdrawal of the parliamentary immunity is the GNAT, does not contain a procedure that urges the judicial authorities to assess whether the interference with parliamentary immunity meets a pressing social need and whether it is proportionate.
It is obvious that the current system, which does not contain sufficient guarantees to ensure parliamentary immunity, prevents the elected MPs from freely expressing the views of the people, and in this sense, the participation of certain individuals or groups in the political life of the country, thus eliminating the effect of the former’s right to stand for elections and engage in political activities.
Article 83 of the Constitution whereby the parliamentary immunity is protected and Article 14 of the Constitution whereby the abuse of fundamental rights and freedoms is prohibited, become fully functional only as long as interpreted in a way to secure the protection of democracy and based on rights. The relevant courts failed to interpret the constitutional provisions in favour of freedoms. Nor has there been a legal system providing substantive and procedural safeguards that may lead these courts to make such an interpretation.
It has been concluded that the applicant’s conviction at the end of the proceedings continuing after his election as an MP and entitlement to the parliamentary immunity resulted in the violations of his rights safeguarded by Article 67 of the Constitution, and that the violation stemmed from the lack of a constitutional or legal regulation involving basic guarantees regarding the protection of parliamentary immunity and the right to stand for elections and engage in political activities, as well as ensuring certainty and foreseeability.
Consequently, the Court has found a violation of the right to stand for elections and engage in political activities.
B. Alleged Violation of the Freedom of Expression
Even if it is made by terrorist organizations or their members, expression of any opinion cannot be evaluated independently of its content, context and objective meaning and categorically excluded from the scope of freedom of expression. It should be underlined that the mere consideration that a statement was made by an illegal organization does not automatically justify any interference with the freedom of expression.
In the present case, a piece of news from a news portal -which is still accessible- was shared on the social media. In the content of the said news, it was emphasized that the PKK had issued a statement where it had been stated that if a step had been taken, “peace would have come within 1 month and the long-awaited solution would have been achieved in fraternity”. The news also included, in detail, the views of the Deputy Chairman of the Parliamentary Group of a political party, the former Deputy Prime Minister and the former Speaker of the GNAT.
The impugned news contained no statement that might be regarded as an incitement to violence and that might directly or indirectly lead to the risk of committing a terrorist offence. Neither the manner in which the applicant had shared the news nor the expression he had used contained an element constituting an incitement to violence. The applicant stated in his post that the terrorist organization's statement to the effect that the solution process should have started again was to be considered.
Moreover, the photograph accompanying the news shared by the applicant should not be considered independently of the content of the news with which it had been published. First of all, it should be noted that the photograph had been accompanying the said news. Regard being had to the fact that the language used in the news had no aspect of inciting violence, the purpose of using the said photograph, when considered together with the manner it had been used and the relevant context, was not to justify, praise or incite the methods used by the terrorist organization that contained violence, force or threat, but to make the news more attractive and convincing, as a reporting technique that is commonly used in the national publications. As a matter of fact, similar photographs are frequently featured in the national written and visual media organs.
The alleged interference with the sharing of the impugned news -which contained a statement that could not be interpreted as an incitement to violence-, by "qualifying it as embracement of the statement" on the sole ground that the said statement belonged to an illegal organization or to a criminal, , resulted in the violation of the freedom of expression. The fact that a statement belonging to a terrorist organization, which was undoubtedly newsworthy and thus reported as news together with the views of opposing politicians was considered as “an attempt to have the terrorist organization conceived as legitimate” may hinder the primary duty of the press as well as the journalism.
The applicant was sentenced to imprisonment on the sole ground that he had shared a news that had been previously published on a national news portal. It was ignored by the judicial authorities that the impugned statement of the terrorist organization had already been made public at the material time. Nor was there any finding that an investigation had been launched or measures had been taken regarding the impugned news. It is even still accessible, though the applicant was punished for having shared it. Accordingly, considering that the said news has not been the subject of any accusations since its publication in 2016, it has been understood that the grounds relied on by the courts in punishing the applicant were insubstantial.
In this regard, it has been concluded that the interference with the applicant’s freedom of expression did not comply with the requirements of the order of a democratic society.
Consequently, the Court has found a violation of the freedom of expression.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.