events
An indictment was prepared by the Office of the Chief Public Prosecutor on the grounds that he committed the crime of making propaganda for a terrorist organization due to sharing a news story on his social media account, and a public lawsuit was filed against the applicant on 4/8/2017. The High Criminal Court (Court) ordered the applicant to be sentenced to 2 years and 6 months in prison for the offense charged. The applicant has applied to the legal remedy of appeal against the decision. While the appeal was in progress, the applicant was elected as a deputy from the Peoples’ Democratic Party (HDP) on 24/6/2018 and applied to the Regional Court of Justice, where his file is located, to stop the proceedings against him in accordance with the second paragraph of Article 83 of the Constitution. The Regional Court of Appeals definitively decided to reject the appeal on the merits, together with the applicant’s requests for a stay of proceedings.
While the final sentence of the applicant was in the execution phase, the applicant filed an appeal upon the right to appeal with the Law No. 7188; The Court of Cassation, which examined the appeal, rejected the applicant’s objections on the merits with the request for the cessation of the proceedings and upheld the conviction. With the reading of the decision in the General Assembly of the Turkish Grand National Assembly (TBMM) on 17/3/2021, the applicant’s parliamentary status was revoked. Upon the dismissal of his deputyship, the Ankara Chief Public Prosecutor’s Office initiated the execution of the conviction and the applicant was placed in the Penitentiary Institution on 2/4/2021.
allegations
The applicant claimed that his right to be elected and to engage in political activities, despite gaining the right to immunity by being elected as a deputy, violated his freedom of expression by being punished for making propaganda for a terrorist organization on the grounds of a post he made on his social media account.
Court’s Evaluation
A. Alleged Violation of Right to Election and Political Activity
- In Terms of the Scope of the Statement of “Conditions in Article 14 of the Constitution” in the Second Paragraph of Article 83 of the Constitution
The basic framework of parliamentary immunity in Turkish law is regulated in the second paragraph of Article 83 of the Constitution, and there are guarantees that deputies cannot be detained, interrogated, arrested or prosecuted without the decision of the Grand National Assembly of Turkey. However, legislative immunity is not regulated as absolute in the Constitution, and some exceptions and limitations have been introduced in Article 83 of the Constitution. In the second paragraph of Article 83 of the Constitution, “situations in Article 14 of the Constitution, provided that the investigation has been initiated before the election” is also excluded from the scope of immunity.
The text of the first paragraph of Article 14 of the Constitution includes the phrase “situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution, and therefore the crimes that are excluded from the legislative immunity because they fall within the scope of the first paragraph of the Article 14 of the Constitution, are only subject to judicial organs. It is not conducive to determining in a meaningful way with its decisions and thus interpreting it in a way that ensures certainty and predictability.
Considering the practice and tradition of the parliament, it cannot be reasonably expected that the applicant, who is a deputy, could reasonably foresee that during his term of office, it would be possible for the judicial authorities to determine that he did not have parliamentary immunity, even if the investigation was started before he was elected, in a way that would interfere with his freedom of expression.
When all these issues are evaluated together, moving from the third paragraph of Article 14 of the Constitution and the provisions of the third paragraph of Article 67 of the Constitution, which regulates the right to vote, be elected and engage in political activity, the “situations in Article 14 of the Constitution” in the second paragraph of Article 83 of the Constitution. It has been concluded that it is not possible to provide certainty and predictability with the comments made by the judicial organs, except for the regulation of the legislator, about which crimes fall within the scope of the phrase.
- Regarding the Detection of the Non-Existence of Legislative Immunity by the Judiciary Organs
In the method of determining that the legislative immunities are not available due to a criminal investigation and prosecution seen within the scope of the situations in Article 14 of the Constitution, the Constitutional Court has determined a series of principles regarding the determination of the seriousness of the accusation based on the Constitution.
When the Constitutional Court interprets Articles 67 and 83 of the Constitution together, it has listed the evaluations that the authorized judge or public prosecutor should make regarding the seriousness of the accusation in order to make a decision regarding the absence of immunity.
The Regional Court of Justice and the Court of Cassation accepted that the offense of propaganda for a terrorist organization imputed to the applicant is one of the crimes falling within the scope of one of the “situations in Article 14 of the Constitution” without making any evaluation in terms of the criteria specified.
In cases similar to the events that are the subject of the application, the duty of the courts is to judge.
Before proceeding with the trial, it is not limited to determining whether the alleged crime falls within the scope of one of the “situations in Article 14 of the Constitution”, but also to determine whether there is the seriousness of the accusation stipulated by the Constitution for other situations that lift the parliamentary immunity.
An opposite attitude does not comply with the logic of the immunity system and the guarantees it tries to provide, and it also causes the courts to not make any of the assessments that need to be made on the merits, such as whether the accusations are serious enough, whether the investigations and prosecutions have political purposes, or whether they are disproportionate to the importance of legislative immunity. This shows that it is impossible to get results from the objections in case it is determined that there is no immunity by the judicial authorities.
The method of determining the absence of immunity does not include all the procedural safeguards that regulate the discretionary power of the judicial authorities and that are necessary to prevent arbitrary acts. The current method does not contain a procedure – at the level of assurance provided in the procedure for lifting immunity by the Assembly – which compels the judicial authorities to assess whether the interference with parliamentary immunity corresponds to a pressing social need and whether it will be proportionate.
It is clear that the current system, which does not contain sufficient guarantees to ensure legislative immunity, prevents the deputies elected to the legislative body 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 their right to be elected and to engage in political activities.
Article 83 of the Constitution, which protects the immunity of the legislature, and Article 14 of the Constitution, which prohibits the abuse of fundamental rights and freedoms, can only fully fulfill their functions if they are interpreted in the context of the protection of democracy and on the basis of rights. The courts do not interpret the constitutional provisions in favor of freedoms, and there is no legal system in which there are substantive and procedural safeguards that will lead them to make such an interpretation.
Conviction of the applicant by continuing his trial after being elected as a deputy and generally having parliamentary immunity violates the rights of the applicant protected by Article 67 of the Constitution, and that the violation is constitutional or constitutional law that provides certainty and predictability, which has basic guarantees regarding the protection of parliamentary immunity, the right to be elected and to engage in political activity. It was concluded that it was due to the absence of a legal regulation.
The Constitutional Court has decided that the right to be elected and to engage in political activities has been violated.
B. Alleged Violation of Freedom of Expression
Even if it is made by terrorist organizations or their members, any statement of opinion cannot be categorically excluded from the scope of freedom of expression by being subjected to an evaluation independent of the content, context and objective meaning of this statement. It should be underlined that the mere fact that any statement belongs to an illegal organization does not automatically justify interference with freedom of expression.
In the concrete case, it is seen that the news of a news site -which is still accessible- was shared on social media and it was emphasized that the PKK published a statement in the content of the news and that if a step was taken in this statement, “peace will come in 1 month and the longing for a solution within brotherhood will be realized”. . The news also included 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 Grand National Assembly of Turkey.
There was no expression in the news in question that could be interpreted as incitement to violence and that could directly or indirectly lead to the danger of committing a terrorist crime. There was no expression that could be interpreted as incitement to violence in the way the applicant shared the news and the sentence he used while sharing the news. In his post, the applicant stated that the terrorist organization’s statement that the solution process should start again should be evaluated.
In addition, the photograph included in the news shared by the applicant should not be evaluated independently of the news content used in the concrete incident. First of all, it should be noted that the photo was used in the shared news. Considering that there is no aspect of inciting violence in the language used in the news, the purpose of using the photograph in question, when evaluated together with the way and context of its use, is not to justify, praise or encourage the methods of the terrorist organization that contain force, violence or threat – as is commonly used in national publications. It can be said that as a news making technique, it is to add attention and credibility to the news. Because similar to the photo in the news,
It is seen that it is frequently given place in the written and visual media organs that broadcast.
Interfering with the sharing of the news that is the subject of the concrete application, which contains a statement that does not contain statements that can be interpreted as incitement to violence, on the grounds that the statement belongs only to an illegal organization or a criminal, by “qualifying it as ownership of the statement” constituted a violation of freedom of expression. Accepting that a statement belonging to a terrorist organization, which has no doubt that it is newsworthy, together with the views of opposing politicians, is accepted as “trying to show the terrorist organization as legitimate” will make it impossible for the press to fulfill its basic duties and journalism.
The applicant was penalized for only sharing a previously published news on a nationally broadcast internet news site. It was ignored that the statement of the terrorist organization, which was the subject of the application, had already been made public at the time of the sharing in the present application. It has not been determined that any investigation has been initiated or measures have been taken regarding this news. The news that the applicant was punished for sharing it is still on the air. Therefore, considering that the news story has not faced any accusations since its publication in 2016, it is understood that the situations assumed by the courts regarding the punishment of the applicant are not actually present.
In this respect, it was concluded that the interference with the applicant’s freedom of expression did not comply with the requirements of the democratic social order.
The Constitutional Court decided that the freedom of expression had been violated for the reasons explained.
