Events
An investigation was launched against the applicant, who was the mayor, on charges of undermining the unity of the state and the integrity of the country due to his participation in a press conference held during the period when the trench incidents began. The applicant was detained for three days as part of the aforementioned investigation and then arrested. The trial was conducted in a high criminal court; the applicant was released during the trial. As a result of the trial, the applicant was sentenced to imprisonment for the crime of membership in a terrorist organization and was detained upon sentencing. The conviction became final after undergoing appellate and cassation review.
Allegations
The applicant claimed that his freedom of expression had been violated because his attendance as a listener at a press conference was used as evidence in his conviction for membership of a terrorist organization.
The Court’s Assessment
The application must first address the importance of the issue of self-administration from the perspective of the PKK terrorist organization. In 2007, the PKK established a structure under the name KCK. With this structure, the organization attempted to organize itself like a state system and created a contract text that was accepted as a constitution for the organization. It is understood from this text, called the KCK Contract, that an autonomous structure was created and that the PKK terrorist organization also made statements regarding the issue of self-administration in its final declarations. With the aim of implementing the order envisaged in this agreement and explained in the statements, starting in the last week of July 2015, statements were made by the PKK terrorist organization and its senior leaders, as well as by different structures of the organization, declaring self-administration.
The applicant participated in a press statement declaring self-administration. When the views expressed in the press release in question are evaluated in the context in which the statement was made, these statements fulfill the PKK’s instructions to declare self-administration and call for the use of armed force in the district. Furthermore, these statements of opinion were made at a time when clashes between the PKK terrorist organization, which was attempting to establish control in certain areas of the Southeast and Eastern Anatolia regions of the country, and the security forces were increasing. Finally, it is clear that serious incidents of violence occurred in the Sur district immediately following the press release.
When all these statements are considered together, it is assessed that the content of the press release encourages an increase in violence in the Sur district and contains the idea that the use of violence against the state is necessary and justified. In addition, it was concluded that the press release in question provided an opportunity to raise awareness that resorting to violence against the state, which was portrayed as aggressive, was necessary and justified, encouraged terrorist attacks, served to make the voice of a terrorist organization heard by the masses, and constituted the sharing of a message with the public that could lead to the commission of terrorist crimes.
On the other hand, according to the Constitutional Court’s assessments, it is impossible for the applicant, who is the mayor of a district in a region where terrorist incidents have increased, to be unaware of the declarations of self-administration made under the name of press statements in many provinces or districts and not to assess that the results of the press statement he participated in would be similar.
As a politician, the applicant should have considered that his participation in the press conference would amplify the impact of the ideas expressed therein on society. Instead, he participated in the declaration of self-administration in accordance with the instructions of a terrorist organization responsible for violent acts that caused the deaths of many civilians and security personnel. Therefore, considering the circumstances at the time of the incident, it has been concluded that the applicant, who was the mayor, was aware of the consequences of a press statement that clearly advocated the organization’s methods involving coercion, violence, or threats, yet participated in and supported the said press statement.
In this context, the Constitutional Court, taking into account the discretion of the courts of first instance in balancing different interests, has determined that the court of first instance’s decision to convict the applicant on relevant and sufficient grounds cannot be considered contrary to the requirements of a democratic society.
The serious nature of the violent incidents that occurred following the press statement in which the applicant participated, and beyond that, the fact that the aforementioned statement of opinion was carried out on the instructions of the organization during a period when conflicts took place that resulted in the deaths and injuries of numerous security personnel and civilians, When these aspects are considered together—namely, that the statement was made at the direction of the organization during a period of conflict that resulted in heavy material losses—it is concluded that the intervention, in the form of sentencing the applicant to 10 years and 15 months in prison for membership in a terrorist organization, meets a pressing social need and is proportionate, and that the intervention is not contrary to the requirements of a democratic society.
The Constitutional Court ruled that freedom of expression had not been violated based on the stated reasons.