Freedom of Association and Assembly / Protests, Political Expression
Tatár v. Hungary
Closed Expands Expression
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The Constitutional Court of Turkey held that the conviction and imprisonment of a teacher for the opinions she expressed on national TV constituted a violation of her freedom of expression. Ayse Celikel, a teacher from the Kurdish region, dialed into a popular talk show in Turkey to convey her distress over the killing of children and civilians in her area during a period of political unrest in the summer of 2016. She was subsequently charged under Article 7/2 of the Anti-Terror Law for presenting the actions of the Kurdistan Workers’ Party, a designated terrorist organization, as legitimate and sentenced to fifteen months of imprisonment. On appeal, the Constitutional Court of Turkey reasoned that statements about the ideology, social or political goals of terrorist organizations, or about those organizations’ opinions on political, social and economic issues, do not constitute terrorist propaganda, unless they encourage or incite violent acts.
The applicant in this case was a teacher in Diyarbakir, a city in which various neighbourhoods were under a curfew enforced by the Turkish government during military operations conducted against an armed militia of the PKK.
On January 08, 2016, the applicant participated in a popular live TV show, the “Beyaz Show.” During the phone call, she expressed anger toward the killing of children and civilians in Southeast Turkey during round-the-clock curfews in the summer of 2016. She made the following statement:
“Are you aware of what’s going on in Southeastern Turkey? Unborn children, mothers, and people are being killed here. As a performer, as a human being you should not remain silent to what’s happening. You should say stop. I want to say one more thing. There are miserable people who are glad to hear that children are dying. We, more correctly I, cannot say anything to these people, but shame on you. […] I can’t speak really. The things happening here are reflected so differently on TV screens or in the media. Don’t remain silent. As a human being, have a sensitive approach. See, hear and lend a hand to us. It’s a pity, don’t let those people, those children die; don’t let the mothers cry anymore. I can’t even speak over the sounds of the bombs and bullets. People are struggling with starvation and thirst, babies and children too. Don’t remain silent. ’’
Pursuant to this call, a criminal investigation was initiated against Ms. Celikel and the TV channel by the Bakirkoy Public Prosecutor on the grounds of producing “propaganda for a terrorist organization’’ under Article 7/2 of Anti-Terror Law. On January 11, 2016, she was arrested for interrogation and subsequently released. On April 20, 2016, the Bakirkoy Public Prosecutor issued an indictment against her for disseminating propaganda on behalf of the PKK under Article 7/2 of the Anti-Terror Law. On April 26, 2016, the Bakirkoy 2nd Assize Court convicted Ms. Celikel and charged her to fifteen months of imprisonment without suspension of the sentence. The Assize Court concluded that the appellant had aimed to eliminate hostility against a terrorist organization, portraying the activities of the PKK to be legitimate.
On June 2, 2017, Ms. Celikel appealed the decision of the Assize Court, arguing that her conviction violated her right to freedom of expression. This appeal was rejected on October 27, 2017 based on the same grounds as the Assize Court. The appellant then lodged an individual application with the Turkish Constitutional Court. On April 20, 2018, she was imprisoned and released after 14 days upon her request for postponement of the execution of the sentence. She was imprisoned again and was still incarcerated on April 17, 2019, the date the Constitutional Court rendered its judgment
The underlying issue before the Court was whether the impugned comments incited hatred or violence by terrorist organizations.
In her application Ms. Celikel argued that the opinions and comments for which she was convicted did not in any way legitimize or praise violence or hatred, but were actually peaceful statements. She claimed she was not convicted for her comments but rather for the alleged inferences of her speech. She also argued that her true intention was to raise awareness of the suffering of the inhabitants of the region.
In response, the Government argued that her conviction pursued a pressing social need as her comments were misleading and detrimental to society. This was due to the fact that she had not mentioned the serious terrorist activities conducted by the PKK, including the digging of ditches in cities during the conflict. The Government further argued that her conviction was legitimate, taking into consideration the actual situation in the country, the high danger posed by the PKK terrorist organization to national security and the fact that the impugned speech was broadcast on national TV.
The Constitutional Court first found that not all expressions of opinion related to terrorism constituted a crime under Turkish law. Only expression that disseminated propaganda in such a way as to justify, praise or encourage coercion, violence or threats by terrorist organizations would amount to such an offence. Therefore, the Court held that opinions pertaining to the ideology, social or political goals of terrorist organizations, or about those organizations’ opinions on political, economic and social problems, cannot be considered as terrorist propaganda. This is the case even if they are linked to violent acts or a terrorist organization, unless they constitute incitement to violence or pose an imminent terrorist threat. [para. 44].
Referring to the Explanatory Report of the Council of Europe Convention on the Prevention of Terrorism, the Court secondly drew a distinction between abstract propaganda for terrorism and propaganda provoking a real danger. According to the Court, interpreting the crime of propaganda for a terrorist organization as a crime of “abstract endangerment’’ (soyut tehlike suçu) has the potential to repress constitutional rights and liberties including freedom of expression. In the light of Article 100 of the Explanatory Report, the Court concluded that for an act of propaganda to be criminalized, it must be demonstrated that, in the particular circumstances of the case, there was a strong likelihood that a terrorist act could take place. [para. 47]
Recalling that Article 26 of the Constitution confers a very narrow margin for restrictions on freedom of expression on matters of public interest, the Court reasoned that Ms. Celikel ‘s call for an end to the armed conflict was clearly related to an issue of public interest. The Court recalled the context of the statements, namely that they concerned the impact of the State’s legitimate struggle against terrorism on the communities and individuals in the conflict zones. The Court further considered the likelihood of whether the public expression of thoughts and opinions on a political crisis were capable of encouraging people to engage in terrorist acts or increased the risk that such acts may be committed. [para. 55] The Court also noted that the limits of acceptable criticism are wider for public authorities than for private individuals. [para. 54]
The Court concluded that in the particular circumstances of the case, Ms. Celikel did not praise members of the organization that were participating in the armed conflict with the State’s security forces, glorify the terrorist organization or incite violence or hatred towards members of State’s security forces. [para. 57] According to the Court, Ms. Celikel’s impugned statements must be tolerated as they were made spontaneously during a live TV show, in the midst of a political crisis. In light of the above reasoning, the Court held that the interference with Ms. Celikel’s right to freedom of expression was not necessary in a democratic society and violated Article 26 of the Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment of the Constitutional Court clearly establishes that peaceful statements of opinion about official politics of war and criticism of the government’s security operations cannot be subject to criminal punishment and imprisonment even if they are in line with the aims or opinions of a terrorist organization. The only ground that can justify a restriction of freedom of expression is glorification or incitement to violence, hatred or hostility.
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