An indictment was filed by the Prosecutor General’s Office with a bet for committing a crime of spreading the propaganda of a terrorist organization due to sharing a news story on his social media account, and a public case was opened against the applicant on 4/8/2017. The Heavy Criminal Court (the Court) ruled that the applicant should be sentenced to 2 years and 6 months in prison for the crime committed against him. The applicant appealed against the decision by way of appeal law. At the time of the appeal review, the applicant had been elected a deputy of the Peoples ‘ Democratic Party (HDP) on 24/6/2018 and the proceedings against him were conducted in accordance with Article 83 of the Constitution. in order to stop in accordance with the second paragraph of the article, he applied to the District Court of Justice where his file is located. The District Court of Justice firmly decided that the appeal application was rejected on the merits, along with the applicant’s requests for the trial to stop.
While the applicant’s finalized sentence was at the execution stage, the applicant appealed upon the introduction of the right to appeal by Law No. 7188; The Supreme Court, which conducted the appeal review, upheld the conviction decision by rejecting the applicant’s objections on the merits of the request to stop the trial. When the decision was read at the General Assembly of the Grand National Assembly of Turkey (Parliament) on 17/3/2021, the applicant’s deputy position was reduced. Upon the dismissal of the deputy, the Ankara Public Prosecutor’s Office initiated the execution of the conviction decision against the applicant and the applicant was placed in a Criminal Execution Institution on 2/4/2021.
The applicant elected MPs to be elected, and although he won the right to judge about immunity to engage in political activity continued to the right, made from your social media account by justifying share on charges of making propaganda for a terrorist organization also argued that freedom of expression had been violated with being punished.
Assessment of the Court
A. Alleged Violation of the Right to be Elected and to Engage in Political Activity
1. Article 83 of the Constitution In Terms of the Scope of the Phrase “Situations in Article 14 of the Constitution” Contained in the Second Paragraph of the Article
The basic framework of legislative immunity in Turkish law is the 83rd amendment of the Constitution. in the second paragraph of the article, the assurances of the deputies that they cannot be held, interrogated, arrested and tried unless the Parliament decides are included in the second paragraph of the article. However, legislative immunity in the Constitution is not regulated in absolute terms, according to Article 83 of the Constitution. in its article, some exceptions and limitations have been made to legislative immunity. Article 83 of the Constitution in the second paragraph of the article, “the situations in Article 14 of the Constitution, provided that the investigation was started before the election” were also excluded from the scope of immunity.
Article 14 of the Constitution the text of the first paragraph of Article 83 of the Constitution. the phrase “Situations in Article 14 of the Constitution” contained in the second paragraph of the article, and therefore the article 14 of the Constitution. it is not conducive to meaningfully determining crimes excluded from legislative immunity due to the fact that they fall within the scope of the first paragraph of the article only by the decisions of judicial bodies and thus interpreting them in such a way as to ensure certainty and predictability.
Taking into account parliamentary practice and tradition, the applicant, who is a deputy, cannot reasonably be expected to foresee that during his tenure, even if his investigation was started before the deputy was elected, the absence of legislative immunity could be determined by the judicial authorities in such a way as to interfere with his freedom of expression.
Considering all these aspects together, the Article 14 of the Constitution states that according to the third paragraph of Article 67 of the Constitution, which regulates the right to choose, be elected and engage in political activity. proceeding from the provisions of the third paragraph of the Article 83 of the Constitution. it has been concluded that it is not possible to provide certainty and predictability with comments made by judicial bodies except for the legislator’s regulation on which crimes fall within the scope of the phrase “Situations in Article 14 of the Constitution” contained in the second paragraph of the article.
2. In Terms of Determining the Absence of Legislative Immunity by Judicial Bodies
Article 14 of the Constitution on legislative immunities. in the method of determining the absence of a criminal investigation and prosecution within the scope of the situations in the Article, the Constitutional Court has established a number of principles for determining the seriousness of the charge based on the Constitution.
The Constitutional Court has adopted Article 67 of the Constitution. and 83rd. when interpreting the articles together, the competent judge or public prosecutor listed the assessments that he / she should make regarding the seriousness of the charge in order to make a decision on the absence of immunity.
The District Court of Justice and the Supreme Court held that the offence of propaganda of a terrorist organisation attributed to the applicant was “Article 14 of the Constitution. he accepted without any evaluation in terms of the criteria stated that one of the”situations in the article ” is one of the crimes covered by it.
In cases similar to the events subject to the application, the task of the courts before proceeding to the trial is to declare that the crime referred to in Article 14 of the Constitution. it is not limited to determining whether one of the”situations in the Article ” remains within its scope, but also to determine whether the severity of the charge provided for by the Constitution for other cases that remove legislative immunity exists.
An alternative attitude is incompatible with the logic of the immunity agency and the guarantees it is trying to provide, as well as leads the courts to make none of the assessments that need to be made on the merits, such as whether the charges are serious enough, whether the investigations and prosecutions are for political purposes or disproportionate in the face of the importance of legislative immunity. This suggests that it is impossible to draw conclusions from appeals to be made if it is determined that there is no immunity by the hands of judicial authorities.
The method of determining the absence of immunity does not include all the procedural safeguards that regulate the discretion of the judicial authorities and are necessary to prevent arbitrary behavior. The current method does not contain a procedure at the level of assurance provided by the procedure for the abolition of immunities by Parliament, which forces the judicial authorities to assess whether the interference with legislative immunity corresponds to a mandatory social need and will be proportional.
Legislative immunity which does not contain sufficient safeguards to ensure the delivery of the opinion of the people freely elected MPs in the legislature of the present system comments, and in this sense, certain individuals or groups are prohibitive nature of their participation in the country’s political life, therefore, to be elected and to engage in political activity, it is clear that eliminated the effect of rights.
83 Of the Constitution, which protects legislative immunity. article 14 of the Constitution, which prohibits the abuse of fundamental rights and freedoms. its article can fully perform its functions only in the context of the protection of democracy and if they are interpreted on the axis of rights. The courts do not interpret these constitutional provisions in favor of freedoms, nor is there a legal system in which there are substantive and procedural guarantees that will lead them to make such an interpretation.
After being elected a deputy and generally having legislative immunity, the applicant’s trial and conviction were continued in accordance with Article 67 of the Constitution. clause violated the rights protected by legislative immunity and the violation of basic guarantees for the protection of rights to be elected and to engage in political activity, specificity and predictability is concluded that regulation provides that stemmed from the lack of a constitutional or statutory.
The Constitutional Court has ruled that the right to be elected and to engage in political activity has been violated on the grounds described.
B. Alleged Violation of Freedom of Expression
Even if it is made by terrorist organizations or their members, any statement of opinion cannot be subjected to an assessment independent of the content, context and objective meaning of this statement and categorically excluded from the scope of freedom of expression. It should be emphasized that the mere fact that any disclosure belongs to an illegal organization will not automatically justify an interference with freedom of expression.
In the concrete case, it is seen that the news of a news site (which still has access) was shared on social media sharing, and in this news content, the PKK published a statement and stated that “peace will come in 1 month and the desire for a solution within the brotherhood will be realized” if this statement is taken. The news also contains detailed information on the views of the Deputy Chairman of the Parliamentary Group of a political party, the former Deputy Prime Minister and the former Speaker of Parliament.
There were no statements in this news that could be interpreted as incitement to violence, which could directly or indirectly lead to the danger of committing a terrorist crime. There were also no expressions that could be interpreted as incitement to violence in the applicant’s way of sharing the news and in the sentence he used when sharing the news. The applicant stated that his statement that the settlement process of the terrorist organization should start again should be evaluated in this exchange.
In addition, the photo contained in the news shared by the applicant should not be evaluated regardless of the news content in which it was used in the concrete event. First of all, it should be noted that the photo was used in the shared news. Considering that there is no direction that encourages violence in the language used in the news, it can be said that the purpose of using the photo is not to legitimize, praise or promote the algebra, violent or threatening methods of a terrorist organization, as is commonly used in national publications, but to add attention and credibility to the news as a news-making technique, given the way and context in which it is used. Because it can be seen that similar photos contained in the news are often featured in national print and visual media outlets.
Not exceeding phrases that could be interpreted as incitement to violence in a concrete application that includes a description of the subject of news to share, comment or belong to a criminal just because of the bet, because an illegal organisation “description be treated as ownership of” intervention constituted a violation of freedom of expression. In addition, the fact that a statement belonging to a terrorist organization that has no hesitation about being news in nature, along with the opinions of opposing politicians, is considered to be “trying to make a terrorist organization look legitimate”, may make it impossible for the press to fulfill its basic duties and report.
The applicant was punished only for sharing a previously published news story on a national-scale Internet news site. It has been ignored that the description of the terrorist organization that was the subject of the application was already made public at the time of sharing the current application. It has also not been determined that any investigation has been launched or a measure has been taken regarding this news. The news that the applicant was punished for sharing is still on the air. Therefore, it is understood that the news has not faced any charges since it was published in 2016, and that, when taken into account, the circumstances that the courts assume in their purpose regarding the applicant’s punishment are not on the merits.
Accordingly, it was concluded that the applicant’s interference with freedom of expression was not in accordance with the requirements of the democratic order of society.
The Constitutional Court has ruled that the freedom of expression has been violated on the grounds described.