Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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In February 2010, Mehmet Ali Aydin, the chairperson of the Diyarbakır Peace and Democracy Party (BDP), made a press release on the anniversary of Abdullah Ocalan’s arrest in Kenya and later his deportation to Turkey. Aydin criticized the Turkish government for its unwillingness to address Ocalan who remains an important actor in solving the Kurdish problem in Turkey. He also called the government to improve prison conditions of Ocalan and to consider his suggestions.
Aydin was subsequently arrested and charged under Article 314 of the Turkish Criminal Code (Law No. 5237) and Sections 6 and 7(2) of the Prevention of Terrorism Act (Law no. 3713), amended by Law no. 5532 for “propagandi[z]ing and committing crime in the name of illegal organization.” He was released after a detention period of 94 days. The Court of Cassation later quashed the judgment. Aydin was finally given a suspended prison sentence of six years on the basis of new laws entered into force during the proceedings. On appeal, the Constitutional Court of Turkey found that the lower court failed to assess Aydin’s statements to determine whether they prompted or incited to violence, hatred, or attempted to support terrorism. Upon examining the statements as a whole within the context in which they were made, the Court concluded that content of the press release did not incite to violence or hatred and nor did Aydin attempt to justify terrorist activities or support hatred.
On February 15, 2010, Mehmet Ali Aydin, the chairperson of the Diyarbakır Peace and Democracy Party (BDP), made a press release during a gathering organized in the memory of the arrest of Abdullah Ocalan in Kenya and his deportation to Turkey. He criticized the government’s reluctant policies in solving the Kurdish problem. He stated, inter alia, that the government was unwilling to sincerely address the Kurdish issue, and emphasized the key role of Abdullah Öcalan in the peace process. He also complained about his prison conditions and asked his immediate release. He called on the authorities to cease military operations and asked them to take Abdullah Ocalan’s suggestions into consideration.
On February 2, 2010, Aydin was arrested by government authorities. The Chief Public Prosecutor’s Office of Diyarbakır brought a criminal indictment against him on charges of “propagandi[z]ing of an illegal organization and committing crime in the name of an illegal organization without being its member.”
On May 27, 2010, the Court of Assize convicted Aydin and sentenced him to six years in prison under Article 314 of the Turkish Criminal Code for having committed a “crime on behalf of an illegal organization without being its member,” and to 2 years of imprisonment under Sections 6 and 7(2) of the Prevention of Terrorism Act (Law no. 3713), amended by Law no. 5532, for disseminating “propaganda in favour an illegal organization.” He was released after a detention period of 94 days.
On April 5, 2013, the Court of Cassation quashed the judgment for failure to adjudicate the case in the light of new laws enacted in the course of proceedings.
On September 10, 2013, the Court of Assize revised its judgment pursuant to Provisional Article 1 § 1 of the Law No. 6352 and suspended Aydin’s prison sentence with respect to the commission of a crime on behalf of an illegal organization. It also dismissed the case concerning his criminal charge of disseminating propaganda for an illegal organization under Article 8 of the Law No. 6459.
Subsequently, Aydin appealed to the Constitutional Court of Turkey, alleging that his release on probation for his opinion expressed in a press statement violated his constitutional right to freedom expression.
The Constitutional Court of Turkey rendered the judgment in its plenary sitting.
The first issue before the Court was whether there was an interference with Aydin’s right to freedom of expression. While the lower court ruled for deferment of prosecution and released him on probation, the Court found it probable that a person under such circumstances may refrain from expressing his opinion and participating in press activities. Particularly in this case, the Court found that Aydin, as a politician “may have a risk to be subject to prosecution and proceedings due to the opinions he may express or his political activities in future and that the deferred prosecution that is subject to this application may be reinitiated as well.” Accordingly, it held that there was an interference with his right to freedom of expression.
The Court then discussed the importance of the freedom of expression by emphasizing that “public authorities have limited margin of appreciation in restricting the political speeches on public interests and debates on social problems.” However, it acknowledged a broader margin of appreciation “on issues that draw the borders of this freedom such as racism, hate speech, war propaganda, incite violence/provocation, call for insurgency or attempt to justify terrorist activities.”
The Court then determined whether the interference with Aydin’s right to freedom of expression was “expedient to aims pursued,” and whether the reasons argued by the public authorities were “relevant and sufficient.” It found that the lower court erred in not assessing which Aydin’s statements prompted violence, hatred or incited persons to terrorize or revolt against the government. Upon examining the statements within the context in which they were made, the Constitutional Court concluded that the content of the press release did not amount to an incitement to violence, hatred, nor did Aydin attempt to justify or support terrorism. According to the Court, “the opinions which are unpleasant to public authorities or a certain segment of society can not be restricted unless they incite violence, attempt to justify the terrorist activities and support hatred.”
Accordingly, the Court concluded that even though the prosecution of Aydin was deferred, the interference with his right to freedom of expression was not necessary in a democratic society and therefore, it was in violation of Article 26 of the Constitution.
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