Events
The applicant’s brother, Y.D., and his brother’s friend, E.K., were dismissed from their jobs under the state of emergency decrees (OHAL KHK). During this process, E.K. began protesting his situation through various activities. The applicant, a documentary filmmaker, wanted to make a documentary film to highlight the problems experienced by people dismissed from public service under the OHAL KHK, using Y.D. and E.K. as examples. To this end, the applicant notified the district governor’s office on 7/9/2017 that he would be shooting a documentary film; On January 29, 2018, he reapplied to the district governor’s office, stating that the police had physically intervened in the filming, requesting that the necessary facilities be provided, that the police be informed, and that he be notified if there was a ban on filming the documentary.
The applicant reapplied to the district governor’s office on 1/3/2018 and requested permission to film E.K. The district governor’s office informed the applicant that, by decision of the provincial governor’s office, events to be held throughout the province between March 2, 2018, and April 1, 2018, were subject to permission and that filming E.K. in the town square on the specified date was not deemed appropriate. The applicant reapplied to the district governor’s office with a petition dated May 3, 2018, stating that he was unable to obtain the images necessary for the documentary film due to constant obstruction by law enforcement during filming and requested that he be given a suitable date for filming. The district governor’s office decided to reject this request on May 9, 2018, on the grounds that the state of emergency was still in effect.
The applicant filed a lawsuit in the administrative court requesting the cancellation of the aforementioned decision and compensation of 10,000 TL. The court ruled to dismiss the case. Upon the applicant’s appeal of the decision, the regional administrative court ruled to dismiss the appeal on its merits.
Allegations
The applicant claimed that the rejection of his request for a documentary film permit violated his freedom of expression.
The Court’s Assessment
The most important factor to consider in the application is the subject matter of the work to be produced. At a time when a state of emergency is in effect, making persons dismissed from public office the subject of a documentary may cause concern that the efforts of organs exercising public power to restore public order, which was disrupted by the coup attempt, will be undermined.
On the other hand, the dismissal of tens of thousands of people from public office under the aforementioned State of Emergency Decrees and the indirect economic and social impact of this measure on a much larger number of people, primarily the family members of these individuals, has turned the issue into a social problem, regardless of whether the decisions were appropriate or not. In this context, when it comes to expressing opinions on highly controversial and socially significant issues, it should not be forgotten that freedom of expression is vital for a democratic society and constitutes one of the fundamental values of democracy. Democracy is based on the power to resolve issues through open debate. At this point, it should be noted that interventions in the exercise of freedom of expression regarding works that draw attention to social issues harm democracy and put it at risk; therefore, the discretion of public authorities in this area is very limited.
However, public authorities have broader powers in areas that define the limits of freedoms, such as war and terrorist propaganda and incitement to violence. For this reason, it is necessary to first assess whether the work in question contains terrorist organization propaganda, as stated in the reasoning of the court of first instance’s decision. In order to make such an assessment, attention must be paid to the content of the ideas put forward in the work in question and the context in which they are expressed, and it must be evaluated whether the intervention is appropriate for the desired objectives.
When examining whether the content of the work in question constitutes terrorist organization propaganda, the nature of the medium used must also be considered. The work in question was intended to be produced as a documentary film. Statements that do not encourage the use of violence, do not pose a risk of inciting terrorist crimes, and express opinions on social or political goals that various groups seek to achieve without resorting to violence, or on political, economic, and social issues, cannot be considered propaganda for terrorism, even if they are deemed ideological and rigid. Therefore, the expression, dissemination, and active, systematic, and credible instillation, persuasion, and recommendation of ideas related to right-wing or left-wing ideologies, anarchist and nihilist movements, the social and political environment or socio-economic imbalances, ethnic issues, differences in the country’s population, demands for greater freedom, or criticism of the country’s form of government—even if they are disturbing to state officials or a significant part of society—are protected by freedom of expression. actively, systematically, and convincingly instilled in others, suggested, or recommended is protected under freedom of expression.
In the specific case, neither the administrative court nor the court of first instance alleged that E.K.’s actions in question praised any terrorist organization, justified violence, encouraged it, or presented it as legitimate. It does not appear possible to consider the statement sought to be explained by the protest action that the applicant intended to use in his documentary as terrorist organization propaganda on its own. Therefore, it must be accepted that the applicant’s action was merely an attempt to record E.K.’s protest action taking place in front of the camera.
There is no doubt that the state’s intervention in artistic freedom of expression must be very limited. It should not be overlooked that the state has a wide range of instruments at its disposal to carry out this limited intervention. In this context, while it is possible to cancel the filming permit, subject the work to review and classification after its completion, and make an assessment based on the results of the review and classification, the production of the work was directly prevented by not granting the filming permit.
In its review of individual applications, the Constitutional Court does not intervene in the assessment of the facts of the case or the interpretation of the law by the courts of first instance, provided that the constitutional rights of individuals are not violated. However, in the present case, the administration and the court of first instance did not attempt to strike a balance between the applicant’s freedom of expression and the objective of protecting public order; they failed to demonstrate the overriding interest in fulfilling the obligation to comply with public order and constitutional principles in the face of the applicant’s freedom of expression. The administration and the court of first instance prevented the production of the work based solely on a fragment. The courts of first instance examined the work subject to the application out of context and in isolation, failing to demonstrate with relevant and sufficient reasoning that the intervention subject to the application was aimed at meeting a compelling social need and was of an exceptional nature.
The Constitutional Court ruled that freedom of expression had been violated on the grounds stated.
