Events
The applicants were tried in different criminal cases on the allegations that their participation in meetings organised on various dates or their statements of opinion constituted crimes under criminal law and that they had committed these crimes on behalf of a terrorist organisation. The applicants were sentenced for the crimes that correspond to their alleged acts in the penal codes and were convicted of various amounts of fines on the grounds that they had committed the said crimes on behalf of a terrorist organisation.
Allegations
The applicants claimed that their freedom of expression and their right to organise meetings and demonstrations had been violated as they had been convicted of the offence of committing an offence on behalf of a terrorist organisation without being a member of a terrorist organisation for participating in a demonstration march or expressing their opinions.
The Court’s Assessment
In a similar application, the Constitutional Court examined and ruled on the claim of the applicant, who was sentenced for committing a crime on behalf of a terrorist organisation without being a member of a terrorist organisation due to his participation in a demonstration organised upon the call of a terrorist organisation, that there was an interference with his right to organise meetings and demonstrations (Hamit Yakut, B. No: 2014/6548, 10/6/2021).
As a result of its assessments, the Court concluded that paragraph (6) of Article 220 of the Law No. 5237 was not specific in terms of content, purpose and scope, could not provide legal protection to the applicant against arbitrary interference with his constitutional right protected by Article 34 of the Constitution, and consequently, the interference arising from the application of paragraph (6) of Article 220 of the Law No. 5237 did not meet the requirement of legality.
In addition, the Constitutional Court applied the pilot judgement procedure in order to ensure, on the one hand, that all similar applications are resolved by the relevant authorities instead of being examined and concluded with a violation, and on the other hand, to eliminate the structural problem by eliminating the source of the violation. Thus, the Constitutional Court decided to postpone the examination of the applications of the same nature -like the present application- and the new applications that will continue to be received after this date for a period of one year as of the publication of the decision in the Official Gazette in accordance with paragraph (5) of Article 75 of the Rules of Procedure of the Constitutional Court.
Undoubtedly, it is within the discretion of the legislative body to make legal arrangements which are an important part of the state policy to be adopted in the fight against terrorism. However, in the Hamit Yakut application, the Constitutional Court examined the legality criterion of the intervention within the scope of its constitutional powers and duties and clearly stated that the interventions carried out on the basis of paragraph (6) of Article 220 of Law No. 5237 were not specific and foreseeable, and therefore an amendment to the relevant legal regulation was required.
The Hamit Yakut decision was published in the Official Gazette dated 3/8/2021 and numbered 31557 and the legislative body was notified for the solution of the structural problem. Within the specified period of time, no legislative amendment has been made to paragraph (6) of Article 220 of Law No. 5237, and the legislator has not made a legislative amendment that makes paragraph (6) of Article 220 of Law No. 5237 accessible, foreseeable and definitive in accordance with the principles set out in the Constitutional Court’s decision, preventing the arbitrary behaviour of the bodies exercising public power in the sense sought by Article 13 of the Constitution. This situation led to the non-fulfilment of the requirements of the pilot judgement of the Constitutional Court, and thus continued the unlawful interference with the applicants’ freedom of expression and right to organise meetings and demonstrations in the applications whose examination was postponed.
In the concrete case, there is no reason to depart from the principles and the conclusion reached in the Hamit Yakut judgement of the Constitutional Court. As a result, the Constitutional Court concluded that the interventions on freedom of expression and the right to organise meetings and demonstrations arising from the application of paragraph (6) of Article 220 of Law No. 5237 did not meet the requirement of legality.
For the reasons explained above, the Constitutional Court decided that the right to freedom of expression and the right to organise meetings and demonstrations were violated.
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