Events
The applicant’s brother Y.D. and his brother’s friend E.K. were dismissed from their professions by state of emergency decrees. During this process, E.K. started to protest his situation with various activities. The applicant, who is a documentary filmmaker, also wanted to make a documentary film in order to express the problems experienced by people dismissed from public office by State of Emergency Decree Laws in the person of Y.D. and E.K. For this purpose, the applicant notified the district governor’s office on 7/9/2017 that he would make a documentary film; on 29/1/2018, he applied to the district governor’s office again and stated that the security forces had actually intervened in the filming of the film, and requested that the necessary facilities be provided, that the security forces be informed and that he be notified if there was a prohibition decision regarding the documentary filming.
On 1/3/2018, the applicant applied to the district governorship again and requested permission to film E.K. The district governorship informed the applicant that the events to be held throughout the province between 2/3/2018 and 1/4/2018 were subject to permission by the decision of the governorship and that it was not appropriate to film E.K. in the municipality square on the specified date. The applicant applied to the district governorship again with a petition dated 3/5/2018 and stated that he could not obtain the footage required for the documentary film due to the constant obstruction by the law enforcement officers during the filming and requested that he be given a suitable date for filming. On 9/5/2018, the district governorship decided to reject this request on the grounds that the state of emergency was still in effect.
The applicant filed a lawsuit at the administrative court for the cancellation of the aforementioned action and payment of 10,000 TL compensation. The court decided to dismiss the case. Upon the applicant’s appeal of the decision, the regional administrative court decided to reject the appeal on the merits with finality.
Allegations
The applicant claimed that his freedom of expression was violated due to the rejection of his request for permission to shoot a documentary film.
Court’s Assessment
The most important issue to be taken into consideration in the application is the subject matter of the work to be produced. At a time when the State of Emergency is still in force, the subject matter of a documentary on persons dismissed from public office may cause the organs exercising public power to be concerned that their efforts to restore the public order disrupted by the attempted coup may be harmed.
On the other hand, the fact that tens of thousands of people were dismissed from public office with the State of Emergency Decree Laws in question, and that the dismissals indirectly affected many more people economically and socially, especially the family members of these people, has made the issue a social problem, regardless of whether the decisions were correct or not. In this context, it should be kept in mind that freedom of expression is vital for a democratic society and constitutes the fundamental values of democracy when it comes to expressions of opinion on highly controversial and highly publicised issues. Democracy is based on the ability to solve problems through open debate. At this point, interventions in the exercise of the freedom of expression in relation to works that draw attention to social problems damage and jeopardise democracy, therefore it should be noted that the discretionary power of public authorities in this field is very limited.
On the other hand, in areas such as war and terrorist propaganda and incitement to violence, which determine the limits of freedoms, public authorities have broader powers. For this reason, first of all, it is necessary to evaluate whether the work requested to be filmed makes propaganda for a terrorist organisation as stated in the justification of the decision of the court of first instance. In order to make such an assessment, attention should be paid to the content and the context in which the ideas expressed in the work in question are expressed, and it should be evaluated whether the intervention is appropriate for the desired objectives.
When examining whether the content of the work subject to the application is aimed at terrorist organisation propaganda, the nature of the medium used should also be examined. The work in question was intended to be shot as a documentary film. Expressions of thought that do not contain expressions encouraging resort to violence, that do not pose a danger of committing terrorist offences, and that do not include social or political goals that various groups intend to achieve without resorting to violence, such as views on political, economic and social problems, cannot be considered as terrorist propaganda, even if they are characterised as ideological and strict. Therefore, the expression, dissemination, active, systematic and persuasive inculcation, indoctrination and recommendation of ideas concerning right or left-wing ideologies, anarchist and nihilist movements, the social and political environment or socio-economic imbalances, ethnic problems, differences in the country’s population, the demand for more freedom or criticism of the country’s form of government – even if they are disturbing for state authorities or a significant part of society – are under the protection of freedom of expression.
In the concrete case, it was not claimed by the administration and the courts of first instance that E.K. praised any terrorist organisation, justified, encouraged and legitimised violence with the act in question. It does not seem possible to accept the expression that the applicant tried to explain with the protest action he intended to use in his documentary as terrorist organisation propaganda on its own. Therefore, it must be accepted that the applicant’s action was only an attempt to record E.K.’s protest action that took place in front of the camera.
There is no doubt that the State’s interference with the freedom of artistic expression must be very limited. It should not be overlooked that the State has a wide range of instruments at its disposal when realising this limited intervention. In this context, the production of the work was directly prevented by not granting a filming permit, while it was possible to cancel the filming permit, to subject the work to an examination and classification after its completion, and to make an evaluation according to the results of the examination and classification.
In the examination of individual applications, the Constitutional Court does not interfere with the courts of first instance’ assessment of the facts and interpretation of the law, unless the constitutional rights of individuals are violated. However, in the concrete case, the administration and the court of first instance did not try to establish a balance between the applicant’s freedom of expression and the aim of protecting public order; they failed to demonstrate the overriding interest in fulfilling the obligation to comply with public order and constitutional principles against the applicant’s freedom of expression. The administration and the court of first instance prevented the production of the work based on only one section. The courts of first instance dealt with the work subject to the application by detaching it from its context and integrity, and failed to demonstrate with a relevant and sufficient justification that the intervention subject to the application was aimed at meeting a compelling social need and was of an exceptional nature.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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