Events
The applicant is a member of the Central Board of Directors of the Democratic Society Party, which was in operation at the time of the events subject to the application. on 28/11/2009, a public lawsuit was filed against the applicant by the prosecutor general’s office for crimes committed on behalf of a terrorist organization and propaganda of a terrorist organization due to his participation in a tree planting ceremony held within the framework of a festival organized by the Lice Municipality. The Attorney General’s indictment; he stated that the event was held in accordance with the call of the organization in order to adopt and recognize the history of the foundation of the terrorist organization and the place where it was founded by the organization’s base and sympathizers. The high criminal court (Court), which conducted the trial, decided that although the applicant was not a member of a terrorist organization, there was no room for punishment for committing crimes on behalf of the organization, and the prosecution for spreading propaganda of a terrorist organization was postponed, and the applicant was placed under supervision for a period of three years. The applicant’s objection to this decision was rejected.
Claims
The applicant claimed that his freedom of expression had been violated due to the fact that a decision had been made to postpone the prosecution due to an event he had participated in.
Evaluation Of The Court
In the concrete case, the applicant claimed that he did not know that the house where the act of planting trees was carried out was the house where the announcement of the establishment of the terrorist organization was made and that the date of the visit coincided with the date of the establishment of the terrorist organization in question, and that he participated in the event by chance after the feast day. The Court did not respect the applicant’s defense, taking into account the previous calls and messages for celebrations intended to be held on the occasion of the anniversary of the foundation of the terrorist organization, the place and date of the act of planting trees, the political personality of the applicant.
It is clear that the appeal made by the applicant is related to the substantiation of material events and facts and the evaluation of evidence. It is also seen that the decision to postpone the prosecution against the applicant is a decision that does not terminate the trial. In the light of these findings, there was no obvious error of discretion and arbitrariness in the Court’s decision not to appeal the applicant’s defense in question in the reasoned decision.
The terrorist organization mentioned in the concrete incident is the perpetrator of serious violent movements that have occurred in every region of Turkey over the past four decades. This terrorist organization is a concrete symbol of the idea that it is necessary to realize an idea by violent methods. This organization commend the Constitutional Court directly or indirectly promote or glorify with algebra, violence or threats, to encourage them to apply the methods of distance is of the opinion that it is not. The Constitutional Court considers that the applicant’s action is in the nature of praising terrorism through historical and spatial symbols within the scope of events that are understood to be traditional in the village where this terrorist organization was established and in the date of its establishment.
From the information and documents submitted to the application file, it has not been determined that the event in question was not peaceful and that the applicant was involved in a violent incident at the event. Focusing on whether a statement of thought generates violence as a criterion for determining whether it encourages the use of violence or armed resistance or rebellion will be an approach that ignores the challenges associated with the fight against terrorism and is far from the truth. Propaganda has an important function in the process of becoming a sympathizer of terrorist organizations first, and then a supporter and member. Moreover, the subject of the application is a terrorist organization, a planner and practitioner of violent movements at the time of the events and still.
Therefore, an MP, and the only concrete action that followed his every move with the applicant by supporters of the terrorist organization that have not adopted the ideology of terrorist organization ideological or methodological explained to the public as a whole, without making any distinction; thus, the supporters of violence against the state has sent the message that is necessary and justified. The applicant has caused the danger that the methods used by the terrorist organization will be accepted by others with this action.
The applicant has been on trial for more than three years, has not faced any criminal convictions due to his action and has been under supervision for three years. Although it can be accepted that there is a deterrent effect on the applicant due to the existence of the case in question, considering the qualifications of the institution for postponing the prosecution, it can be said that it is a milder measure compared to the prison sentence or fine that can be executed as a result of its effects.
Within the scope of all these evaluations, it was concluded that the interference with the applicant’s freedom of expression meets a mandatory need and that the interference is proportionate to the right of the society to protect itself against terrorist acts.
The Constitutional Court has decided that freedom of expression has not been violated on the grounds described.