Case Summary and Outcome

A Turkish Administrative Court held that the prohibition of a concert was unlawful. A District Governorate had issued an administrative decision to ban a concert organized by a music and film production company on the grounds that there was a “strong suspicion” that a crime would be committed. The Court noted that the social media posts that allegedly created the suspicion of crime were not provided and found that the administrative authority did not demonstrate that a clear, concrete, and imminent danger of crime would be committed during the concert. It stressed the importance of freedom of expression, and annulled the decision to prohibit the concert.

Facts

On October 11, 2021, the Mesopotamian Cultural Center, a Turkish music and film production company, submitted a petition for notification to the Kadıköy District Governorate regarding a concert planned to be held on 16 October in Kadıköy, Istanbul.

The Kadıköy District Governorate issued an administrative decision prohibiting the concert on the grounds that there was a “strong suspicion”, based on social media posts, that a crime would be committed during the event. The decision was issued under Article 17 of Law No. 2911 on meetings and demonstrations which regulates the postponement and prohibition of meetings, and authorizes the governor, regional governor, and district governors to postpone a meeting for up to one month for reasons related to national security, public order, prevention of crime, protection of public health, morals, or protection of others’ rights and freedoms. In cases of a clear and imminent danger of a crime, the same persons are authorized to prohibit the meeting. The decision was also made under Article 32/ç of Law No. 5442 on provincial administration law which grants the use of preventive law enforcement authority within the district borders to the district governorship to ensure peace and security and public well-being within the district borders of a district, allowing them to make decisions and take measures for these purposes.

The Mesopotamian Cultural Center filed a lawsuit before the Istanbul 6^th Administrative Court seeking annulment of the District Governorate’s decision. It also sought compensation of 39,368.13 Turkish Lira (TL) (approximately US$1350 in 2023) in pecuniary damages and 300,000.00 TL (approximately US$10 300 in 2023) in non-pecuniary damages, along with legal interest.

On January 28, 2022, the Istanbul 6^th Administrative Court issued an interim decision requesting the submission of information and documents, including intelligence information, from the District Governorate, which had been used in making the decision to prohibit the concert. Among the documents submitted was a social media post from an account named “HDP Istanbul Kültür Sanat” (HDP Istanbul Culture Art) that mentioned “We are expecting you all to the Mesopotamian Cultural Centre for the 30th Anniversary celebration on October 16 at 18:00 at Bostancı Show Center”. There was also a report signed by police officers and the representatives of the show centre on October 16 indicating a “strong suspicion” and a conviction that a crime would take place due to posts on social media but those mentioned posts were not presented.

Decision Overview

The central issue for the Court’s determination was whether the prohibition of the concert on the grounds that there was a “suspicion and conviction” that a crime would be committed during the concert was in compliance with the law and sufficiently justified.

The Cultural Center had legal representation at the hearing, but the District Governorate did not send a representative. Accordingly, the Court heard only arguments from the Cultural Centre.

The Court referred to relevant national and international legal frameworks in the decision. Article 13 of the Turkish Constitution regulates the regime of limitation of rights and freedoms. It stipulates that limitations can only be imposed for reasons specified in the Constitution and by law, without touching the essence of rights, and that the limitations cannot be contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and secular republic, and the principle of proportionality. The Court also referred to Article 26 of the Constitution, which protects freedom of expression ensuring everyone’s right to speak, express, and disseminate thoughts and opinion and Article 27 of the Constitution on freedom of science and art guarantees the right to freely learn, teach and explain science and art. The Court further included references to Articles 10 and 11 of the European Convention on Human Rights (ECHR) on freedom of expression and freedom of assembly and association respectively.

The Court emphasized that fundamental rights and freedoms can only be restricted in a proportionate manner without impairing their essence. Therefore, there must be a fair balance between the purpose of limitation and its means, which includes three sub-principles: suitability, necessity, and proportionality. Within this scope, the legal measure limiting the right must be suitable to achieve the purpose of restricting, and at the same time, it must be necessary for the democratic order, and the restriction must be proportionate without imposing an unreasonable obligation to any individual.

In highlighting the importance of freedom of science and art as a special form of freedom of expression in a democratic and pluralistic society, the Court referred to the principles from the Constitutional Court that freedom of expression is one of the fundamental bases of the democratic society and an essential condition for self-realization of every individual. These stress that the freedom of expression, freedom of science and art guarantees peaceful expressions, and that demonstrations with the intention of using violence cannot be considered peaceful. Additionally, radical measures preventing the exercise of freedom of expression and freedom of science and art, except in cases involving incitement to violence and aiming to abolish democratic principles, would harm democracy. The Constitutional Court has held that peaceful expressions and demonstrations which do not pose a threat to public order should be tolerated.

The Court held that if the exercise of freedom of expression and freedom of science and art poses a threat to public order, the public authorities have discretion to take measures and impose penalties – but these measures and penalties cannot turn into unlawful restrictions on the right to peaceful assembly. With reference to the case of Dilan Ögüz Canan Application, TCC App. No: 2014/20411, 11.30.2017, the Court noted that this requires that individuals should be protected against arbitrary interventions by public authorities. The Court also mentioned the European Court of Human Rights in assessing that freedom of expression also protects expressions that are disturbing, alarming or shocking as a requirement of tolerance and pluralism in a democratic society.

The Court examined the decision to prohibit the concert and the grounds used to reach the decision. Although the concert had been prohibited based on the “strong suspicion and conviction” that a crime would be committed during the event based on social media posts, the Court recognized that the social media post submitted to the Court only contained information about the location and time of the concert. The Court also noted that despite the same justification being mentioned in the report signed by police, the social media posts were not attached to that report either. The Court concluded that the District Governorate did not demonstrate that there was a clear, concrete, and imminent danger of crime being committed during the concert. Accordingly, it held that the prohibition decision was not justified and was not lawful. The Court noted that a decision issued by İstanbul Regional Administrative Court 10^th Chamber reached the same conclusion in a similar dispute. For these reasons, the Court ruled that there be an annulment of the administrative decision on prohibition of the concert.

The Court stated that, in accordance with Article 125 of the Constitution, the administration is obliged to compensate for damages arising from its actions and decisions, and ordered that the District Governorate pay pecuniary compensation of 39,368.13 TL for the Cultural Center’s expenses such as airplane tickets, ticket printing, and advertising costs along with legal interest. The Court noted that for the compensation of non-pecuniary damages, there must be a moral damage due to reasons such as violation of personal rights, offence to honour and dignity, and so rejected the claim for non-pecuniary compensation as the Cultural Center had not fulfilled the conditions for non-pecuniary damages. The Court did order the payment of the Cultural Center’s legal expenses.

The decision was not final and is open to be appealed before the Istanbul Regional Administrative Court.