Events
The applicant’s brother YD and his brother’s friend EK were dismissed from their jobs under the state of emergency decree. During this process, EK began protesting his situation through various actions. The applicant, a documentary filmmaker, wanted to make a documentary highlighting the problems faced by individuals dismissed from public service under the state of emergency decree, using YD and EK as examples. To this end, the applicant notified the district governor’s office on September 7, 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, and requested that the necessary facilities be provided, that the police be informed, and that he be notified if the filming of the documentary was prohibited.
The applicant reapplied to the district governor’s office on March 1, 2018, requesting permission to shoot the documentary titled EK. Th 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 the documentary titled EK 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 necessary footage for the documentary film due to constant obstruction by law enforcement during filming and requesting that he be given a suitable filming date. Th 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 decision and compensation of 10,000 TL. The court dismissed the case. Upon the applicant’s appeal, the regional administrative court dismissed the appeal on its merits.
Allegations
Th 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 issue to be considered in the application is the subject matter of the work to be produced. During a period of state of emergency, making persons dismissed from public office the subject of a documentary could give rise to concerns that it would undermine the efforts of public authorities to restore public order disrupted by the coup attempt.
On the other hand, the removal of tens of thousands of people from public office under the aforementioned State of Emergency Decrees and the indirect economic and social effects of this practice on a much larger number of people, especially the family members of these individuals, have made the issue a social problem, regardless of whether the decisions were appropriate. In this context, when it comes to expressing opinions on highly controversial and socially important 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 relies 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 quite 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. Therefore, it is necessary to first assess whether the work in question contains terrorist organization propaganda, as stated in the reasoning of the first instance court’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 assessed whether the intervention is appropriate for the desired purposes.
When examining whether the content of the work in question constitutes terrorist organization propaganda, the nature of the medium used must also be taken into account. The work in question was designed to be filmed as a documentary. Statements that do not encourage the use of violence, do not carry the risk of inciting terrorist crimes, and express views 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 terrorist propaganda, even if they are considered ideological and rigid.
Therefore, the expression, dissemination, active, systematic, and persuasive inculcation, 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 it disturbs state officials or a significant segment of society, falls within the scope of freedom of expression. Any idea that is actively, systematically, and persuasively instilled, proposed, or recommended to others is protected under freedom of expression.
In the specific case, neither the administrative court nor the court of first instance alleged that the actions in question by the applicant praised any terrorist organization, legitimized violence, encouraged it, or portrayed it as legitimate. It does not appear possible to assess the expression sought to be conveyed by the protest action 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 an attempt to record the protest action taking place in front of the camera.
There is no doubt that the state’s interference with artistic freedom of expression must be very limited. It should not be overlooked that the State has a wide range of tools at its disposal to carry out this limited intervention. In this context, while it is possible to revoke 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 refusal to grant a filming permit directly prevented the production of the work.
When examining individual applications, the Constitutional Court does not interfere with 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 specific 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 that there was an overriding interest in complying with public order and constitutional principles over the applicant’s freedom of expression.
The administration and the court of first instance prevented the production of the work based solely on one part of it. Th courts of first instance examined the work in question out of context and in isolation, failing to demonstrate with relevant and sufficient reasoning that the intervention in question aimed to meet 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.