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 for participating in a press conference held during the period when the trench incidents began. The applicant was detained for three days as part of the investigation and then arrested. The trial was held 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 membership of a terrorist organization and was arrested after the verdict was announced. The decision became final after review on appeal and cassation.
Allegations
The applicant claimed that his freedom of expression had been violated because his attendance at a press conference as a listener was used as evidence in his conviction for membership of a terrorist organization.
Th e Court’s Assessment
The application should first address the importance of the issue of self-administration for the PKK terrorist organization. In 2007, the PKK established an organization called the 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 on the issue of self-government in its final declarations. In order to implement the order envisaged in this agreement and explained in the statements,
Starting from the last week of July 2015, statements declaring self-administration were made by the PKK terrorist organization and its senior leaders, as well as by different structures of the organization.
The applicant participated in a press statement declaring self-administration. When evaluated within the context in which they were made, the views expressed in the press release in question fulfill the PKK’s instructions to declare self-rule and use armed force in the district. Furthermore, these statements were made during a period of increased 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. Finally, it is clear that serious acts of violence occurred in the Sur district immediately after 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. Furthermore, it has been 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 the terrorist organization heard by the masses, and shared a message with the public that could lead to the commission of terrorist crimes.
On the other hand, according to the assessments of the Constitutional Court,
It is impossible for the applicant, who is the district mayor in a region experiencing an increase in terrorist incidents, to be unaware of the self-governance declarations made under the guise of press statements in many provinces or districts, and to fail 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 increase the impact of the ideas expressed on society. On the contrary, he participated in the declaration of self-rule in accordance with the instructions of a terrorist organization responsible for violent acts that led to the deaths of many civilians and security personnel. Therefore, considering the circumstances at the time of the incident, it was concluded that the applicant, who was the mayor, was aware of the consequences of a press statement that explicitly defended the organization’s methods of coercion, violence, or threats, but nevertheless participated in and supported the press statement.
In this context, the Constitutional Court, taking into account the discretion of the courts of first instance in balancing different interests, concluded that the court of first instance’s decision to convict the applicant on relevant and sufficient grounds could not be considered contrary to the requirements of a democratic society.
The seriousness of the violent incidents that occurred following the press statement made by the applicant, and beyond that, the fact that the statement in question was made on the instructions of the organization during a period of clashes that resulted in the death and injury of numerous security personnel and civilians, When these factors are considered together, namely that the statement was made on the instructions of the organization during a period of clashes that resulted in heavy material losses, it was concluded that the intervention, in the form of sentencing the applicant to 10 years and 15 months in prison for membership of a terrorist organization, met an urgent social need and was proportionate, and that the intervention was not contrary to the requirements of a democratic society.
The Constitutional Court ruled that freedom of expression had not been violated for the reasons stated.