2013/1461, Date of Decision - Constitutional Court of the Republic of

REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
General Assembly
DECISION
FATİH TAŞ APPLICATION
(Application Number: 2013/1461)
Date of Decision: 12/11/2014
General Assembly
DECISION
President
: Haşim KILIÇ
Deputy President
: Serruh KALELİ
Deputy President
: Alparslan ALTAN
Members
: Serdar ÖZGÜLDÜR
Osman Alifeyyaz PAKSÜT
Zehra Ayla PERKTAŞ
Recep KÖMÜRCÜ
Burhan ÜSTÜN
Engin YILDIRIM
Nuri NECİPOĞLU
Hicabi DURSUN
Celal Mümtaz AKINCI
Erdal TERCAN
Muammer TOPAL
Zühtü ARSLAN
M. Emin KUZ
Hasan Tahsin GÖKCAN
Rapporteur
:
Yunus HEPER
Applicant
:
Fatih TAŞ
Counsel
:
Att. İnan AKMEŞE
I.
SUBJECT OF APPLICATION
1. The applicant, for he was tried as a result of the books that he has published has
asserted that his freedom of expression, as a result of the extended duration of the trial his
right to trial within a reasonable period, and as a result of the decision to postpone prosecution
which was made over the file his right to be present at the session were violated and requested
material and spiritual compensation.
II. APPLICATION PROCESS
2. The application was lodged on 8/2/2013 via the 5th Civil Court of First Instance
of Istanbul. The deficiencies detected as a result of the preliminary administrative
examination of the petitions and its annexes thereof were made to be completed and it was
determined that no deficiency preventing their submission to the Commission existed.
3. It was decided by the First Commission of the First Section on 23/12/2013 that the
file be sent to the Section in order for the examination of admissibility to be conducted by the
Section.
4. On the date of 19/3/2014, it was decided by the Section that the examination of
admissibility and merits be jointly carried out.
5. The facts and cases, which are the subject matter of the application, and a copy of
the application were sent to the Ministry of Justice. The opinion letter of the Ministry of
Justice dated 11/3/2014 was notified to the applicant on 13/3/2014, the applicant submitted
his opinion to the Constitutional Court on 2/4/2014 within due period.
6. In the meeting that was held by the Section on the date of 15/10/2014 it was
considered that the quality of the application required that it be decided upon by the General
Assembly, the Section has decided that it be forwarded to the General Assembly for elaboration in
line with paragraph (3) of article 28 of the Internal Regulation of the Constitutional Court.
III. FACTS AND CASES
A. Facts
7. As expressed in the application form and the annexes thereof and the opinion of
the Ministry, the facts are summarized as follows:
8. The applicant is the owner of the publishing house named Aram Yayıncılık the
headquarters of which is located in Istanbul.
9. A public action was lodged by the Office of the Chief Prosecutor of the State
Security Court (DGM) of Istanbul with the indictment dated 14/1/2002 thereof concerning the
punishment of the applicant for the crime of supporting the Terrorist Organization PKK
through the press as he had published in the month of January of the year 2002 two poetry
books.
10. With the decision dated 30/9/2002 of the 4th SSC of Istanbul it was ruled that the
applicant be sentenced to aggravated imprisonment for 3 years and 9 months in line with
article 169 of the Turkish Criminal Code No. 765 and dated 13/3/1926 and that such libertybinding decision be converted in to a heavy fine of TRY 9.923,00. The justification of the
Court of First Instance is as follows:
Through the use of expressions in the preface section between the pages 9-12 of book
one, mentioning Kurdistan, '...the Kurd was made to recess politically and this has deeply
affected his/her cultural initiative. Regarding its inception, the national movement of
Kurdistan has reached Kurd individuals of each stratum in a different dimension, proceeding
fast, creating a mass, relieving the bottleneck that was experienced on a class and national
basis and taking it forward results from being able to fill in the gap that was created ... It aims
to create the Kurdish individual, the new human being in the person of the Kurdish nation.
Our revolution is the revolution for the creation of the new and what befits humans to change
the present day which is an adverse outcome that holds the negative impacts of the past
within. The National War of Independence has impelled the Kurdish people to the mountains
to create the free life...' that a war for the country called Kurdistan is being given and it is
emphasized that this is a fight for freedom ...
That on pages 15 and 16 in the beginning of the book two poems undersigned by the
leadership have been published and the term leadership is an expression which is used for
Abdullah Öcalan, the chief of the illegal organization PKK...
That on page 25 of the book under the sub-heading 'poems written for the leadership'
through the expressions that have been used in the poem entitled "utancın tanığı
Marmara„yım" emphasis the fact that the leader of the organization Abdullah Öcalan is being
kept under arrest on the island İmralı and that he is depicted as someone fighting for freedom,
that him being in prison is a shame and views as such are asserted...
That in the poem published in the pages 29-10 named 'milat' opinions such as the date of
February 15th which is known as the date on which the leader of the illegal organization has
been captured and this date bring a source of sadness and shame and that nobody wanted to
go through that moment have been expressed...
That in the poem entitled 'ben yaşamım' on page 31 an abstract country is mentioned and
expressions such as 'the martyr I am, my name is Mazlum, Kemal and Hayri are my names, I
am the avenging bullet from Agit's barrel, flame arising from Zekiye's body and love, I am, in
Zila's heart, the fire of freedom inflamed by the guerrilla, the tune of love from the shepherd's
flute' are employed ... Also in the same poem through the use of expressions such as
'Humanity's heritage from Spartacus to Guevara, I am the forty million hearts, my people's
hope, and I become revenge, for I am the son of Fire, sun of Mesopotamia, Öcalan I am
Öcalan' that the members of the organization who have fasted to death or killed themselves for
protest purposes or the guerrillas who fight in the mountains are mentioned and that such
expressions are also reminiscent that Abdullah Öcalan is the hope of the people, the son of
the Mesopotamian sun whereby the leader of the illegal organization and the members thereof
are praised and the actions thereof are canonized...
In the poems which appear in the sections entitled "Poems Written After the Martyr and
Poems By Martyrs" of the book, that the personalities and actions of the members of the
illegal organization are praised, mentioning the death fast activities as well as the date and
place of the incidents where they have fought in the mountains, fought for freedom and fell as
martyrs ... including the names of the members of the illegal organization and praising them
and their acts and thus, in the book as a whole the propaganda of the organization is made by
way of mentioning the leader and the members of the terrorist organization PKK...
And that in the second book entitled "We Are Hidden in the Heart of the Mountain-Poems
by the Guerrilla" which was also published by the same publishing house, in the poem entitled
'Fırat' on page 21, through the use of expressions such as "that is our indignation against
Marmara, we will not, no the two waters will not join, but we will present our handful of love
to our leader Apo, without the waters of Marmara splashing on our skin, with our hearts torn
apart" the detention of the so called leader of the illegal organization on İmralı island is
underscored and he is praised as such...
That in the poem entitled "who is asking?" on page 27, through the use of expressions
such as "his scream in İmralı, his heart of the island's breath, the the plentiful soil becomes a
light, spilling over from İmralı, that is why, because it yearns for İmralı as we yearn for it too"
the member of the illegal organization who is in prison in İmralı is alluded to whereby the
leader of the organization is praised through the emphasis on the soil, freedom and
themselves who are yearning for him...
That in the poem entitled "feel the pain" on page 42, through the use of expressions such
as "15th day of February presses hard on, with tears and the February realm and oppresses
thus the rising uprise" the fact that the leader of the illegal organization was captured on 15th
of February is emphasized and this is remembered in sadness and in grief.
That in the poem entitled "friend" on page 181, through the use of expressions such as
"the writing of darker history in blood and to see it lit up under the sun, I want to conjoin not
with time that drags me but with its act of giving hue to dark pages, dream of bloodless nights
in the glow of the sea, set free my hair at the mountains of Kurdistan" it is emphasized that
the dark age of the history of Kurdistan will come to a close and the region will be lit up by
sunshine, hence the fight for freedom and independence that is being fought in the area which
is called Kurdistan is implied and that this fight is being canonized...
Through the declarations and expressions which are used in the aforementioned poems,
the personality and actions of the leader of the illegal organization are praised, that
emphasize is put on what is being done as a fight for freedom and independence and thus the
propaganda of the terrorist organization PKK is being made, that such propaganda in
included in both books as such, that the accused has committed the crime of aiding the illegal
organization with which he has been charged simultaneously and consecutively as a result of
the poems in these two books..."
11. Upon the appeal of the decision by the Court of First Instance, the 9th Criminal
Chamber of the Supreme Court of Appeals with its writ dated 29/5/2003, approved the
decision of the Court of First Instance and the decision was finalized.
12. In the phase of execution, as a result of the amendment made in article 169 of the
Code No. 765, it was decided with the decision dated 20/2/2004 of the İstanbul SSC No. 4
that execution be stopped and on the same date, the adaptation trial commenced for the reevaluation of the act of the applicant considering the amended provision of the code.
13. It was decided, with the decision dated 21/3/2007 of the 12th Assize Court of
İstanbul (the former DGM No. 4) that the applicant be sentenced to an administrative fine of
1.080 TRY as per article 7 of the Anti-terror Code No. 3713 and dated 12/4/1991 for the
crime of making the propaganda of the terrorist organization. The justification of the decision
of the Court of First Instance is as follows:
"...the writings and poems in the preface and on different pages of the books entitled
Poems by the Guerrilla - 1 and Poems by the Guerrilla - 2, when examined as a whole, as a
result of which the crime of the accused has been approved for they, in terms of their content
are abetting resort to violence and other terrorist methodologies, having the nature of making
the propaganda of the organization..."
14. Upon appeal the 9th Criminal Chamber of the Supreme Court of Appeals with the
writ dated 28/1/2010 reversed the decision of the Court of First Instance regarding procedure.
15. As a result of the retrial that has been made, with the decision of the 12th Assize
Court of İstanbul dated 8/12/2010, it was decided that he be sentenced to an administrative
fine of 16.660,00 TRY for making the propaganda of the terrorist organization. The
justification of the Court of First Instance is as follows:
"...whereby, in poems that have been published in the preface and on different pages of
the books entitled Poems by the Guerrilla - 1 and Poems by the Guerrilla - 2, the crime of
aiding the organization by way of making the propaganda of the terrorist organization PKK
through the praise of the members and the so called leader of the illegal organization and
through the canonization of the thoughts and actions thereof was deemed to be proven..."
16. Upon appeal the 9th Criminal Chamber of the Supreme Court of Appeals with the
writ dated 29/3/1012 reversed, once again, the decision of the Court of First Instance
regarding procedure.
17. As a result of the retrial which has been carried out it was decided with the
decision of the 12th Assize Court of İstanbul dated 10/7/2012 that the prosecution which is
carried out about the applicant be postponed in line with the provisional article 1 of the Code
No. 6352 dated 2/7/2012 on the Amendment of Some Codes So As to Render Judicial
Services Effective and the Postponement of Cases and Penalties as Regards the Crimes
Committed Through the Press and that the provisions of probation for a duration of three
years be implemented regarding the applicant.
18. Upon objection, the objection was dismissed with the decision of the 13th Assize
Court of İstanbul dated 26/12/2012 and the decision of the 12th Assize Court concerning the
postponement of prosecution has been finalized and the decision was notified to the applicant
on the date of 11/1/2013. The individual application was made on the date of 8/2/2013.
B. The Books Which are the Subject of the Application
19. In the month of January of the year 2002, Aram Yayıncılık published two poetry books
entitled "This Heart Travels Over Mountains Poems by the Guerrilla - 1" (the first book) and "We Are
Hidden in the Heart of the Mountain Poems by the Guerrilla -2" (the second book). The applicant is
the owner of the said publishing house and the publisher of the books that have been
mentioned. It could not be determined by whom the said book was written and to whom the
poems belong to.
20. The first book is comprised of a preface and five chapters. The book is comprised of
the chapters "Poems Written to the Leadership," "Poems Written to Martyrs," "Poems Written by the
Martyrs," "Poems on the Guerrilla," "Poems with the Subject Matter of Women" and "Free Verses"
respectively and a total of 197 pages, not including references and bibliography. The second book is
comprised of a preface and seven chapters. The book is comprised of the chapters "Poems Written
to the Leadership," "Poems Written to Martyrs," "Poems Written by the Martyrs," "Poems Written on
Earth," "Poems Written to the Guerrilla," "Poems Written to the Woman" and "Free Verse"
respectively, and a total of 262 pages.
21. The applicant because of the books of poetry that he has published was first
convicted with the decision of the DGM No. 4 dated 30/9/2002 and such decision was
finalized upon the approval of the Supreme Court of Appeals. In the decisions of conviction
taken in subsequent trials which have been done as a result of the amendment of the code,
new justifications have not been included, the justifications in the decision of conviction have
been relied upon in terms of merits, (see. § 9).
C. Relevant Law
22. Article 169 of the Code numbered 765 is as follows:
"With the exception of the circumstance specified in articles 64 and 65, whoever shows
such a society and a gang, acknowledging their status and title, a place to harbor or provides
aid or provisions or weapons and munitions or clothes, s/he shall be sentenced to aggravated
imprisonment from three to five years."
23. The version of article 3 with the side heading "crimes of terrorism" of the Code No. 3713
which antedates the amendment that was made with article 2 of the Code No. 5532 dated
29/06/2006 is as follows:
"Crimes which are written in articles 125, 131, 146, 147, 148, 149, 156, 168, 171 and
172 of the Turkish Criminal Code are crimes of terrorism."
24. The version of article 4 with the side heading "Crimes That Have been Committed With
the Aim of Terrorism" of the Code No. 3713 which antedates the amendment that was made with
article 3 of the Code No. 5532 is as follows:
"In the implementation of this Code;
a) (Amended sub-paragraph: 13/11/1996 - 4211/1 art.) Crimes which have been
written in articles 145, 150, 151, 152, 153, 154, 155, 157, 169 and 384 and the second
paragraph of article 499 of the Turkish Criminal Code,
b) Crimes which have been written in sub-paragraphs (b), (c), (e) of article 9 of the
Code on the Establishment and the Trial Procedures of State Security Courts No. 2845,
shall be considered as crimes of terrorism in the event that they are committed with the
aim of terrorism as specified in article 1."
25. The version of article 5 with the side heading "increasing sentences"of the Code No.
3713 which antedates the amendment that was made with article 4 of the Code No. 5532 is as
follows:
"The sentences binding personal freedom or fines to be determined concerning those who
commit the offenses stipulated in articles 3 and 4 shall be adjudged by way of increasing them
by half. In the sentences to be determined in this way, the upper limit of the penalty which is
determined for both that act and all kinds of penalties can be exceeded. However, in sentences
binding personal freedom, this limit shall not be in excess of 36 years for aggravated
imprisonment, 25 years in imprisonment and 10 years in light imprisonment."
26. The second and fifth paragraphs of article 7 of the Code No. 3713 that have been
amended as a requirement of article 6 of the Code No. 5532 are as follows:
“…
Those who aid the members of the organization established as per the above clause or
engage in propaganda so as to encourage resorting to violence or other methods of terror are
sentenced in addition to one to five years in prison and a heavy fine of five hundred million
liras to a billion liras, even if their actions constitute another crime.”
...
In the event of committal of the crime of propaganda in relation to the organization as
specified in paragraph 2 above through periodicals that have been specified in article 3 of the
Press Code No. 5680, the owners thereof shall also be sentenced to an administrative fee of
about ninety percent of the average amount of sales of the previous month in cases where such
periodicals have a period of less than one month. However, such fines cannot be less than one
hundred million liras. To the editors in chief of such periodicals, half the fine which is
applicable to the owners thereof shall be applied and a sentence of imprisonment from six
months to two years shall be adjudged."
27. Paragraphs (1) and (2) of Provisional article 1 of the Code numbered 6352 are as
follows:
" (1) As a result of a crime which has been committed until the date of 31/12/2011
through the means of press and media or through other methods of disclosure of thoughts and
opinions, that, regarding the basic form of which, requires an administrative fine or an
imprisonment sentence the upper limit of which shall not be in excess of five years;
a) That, during the prosecution stage, the lodging of the public action be postponed
without seeking the conditions in article 171 of the Code of Criminal Procedure No. 5271
dated 4/12/2004,
b) That, the prosecution be postponed during the prosecution phase,
c) That, the execution of the finalized judgment on conviction be postponed,
shall be decided.
(2) In the event that the person regarding whom a decision to lodge a public action or to
postpone prosecution has been given does not commit, in three years from the date on which
the decision of postponement has been made, a new crime which falls within the scope of
paragraph one, a decision of no grounds for prosecution or discontinuation shall be taken. In
cases where, during this period, a new crime which falls within the scope of the first
paragraph is committed, when one is convicted to a sentence with a final judgment because of
such crime, the investigation or prosecution that has been postponed shall resume."
IV. EXAMINATION AND JUSTIFICATION
28. The individual application of the applicant dated 8/2/2013 and numbered
2013/1461 was examined during the session held by the court on 12/11/2014 and the
following were ordered and adjudged:
A. Claims of the Applicant
29. The applicant has claimed that his right to be tried within a reasonable period has
been violated for the adaptation trial has lasted for 9 years, that his freedom to disclose and
disseminate thoughts has been violated for he was tried as a result of the books that he has
published and his freedom to be tried publicly has been violated for the final decision
concerning the postponement of prosecution which was taken by the Court of First Instance
was taken based on the file without a trial. The applicant has made a request for TRY
10.000,00 material and TRY 30.000,00 for spiritual damages.
B. Evaluation
1. In Terms of Admissibility
a. Regarding the Violation of Freedom of Expression and the Right to be Tried
Within a Reasonable Period
30. It was reminded in the opinion of the Ministry that with the decision dated
10/7/2012 of the 12th Assize Court of İstanbul it was decided that the prosecution being
conducted regarding the applicant be postponed and thus there was presently no decision of
conviction that has been made in relation to the applicant regarding the incident which is the
subject of the application.
31. The applicant has claimed that a judgment of conviction has been previously
established about him three times and that finally a decision regarding the postponement of
prosecution has been taken and thus he was subjected to the threat of prosecution, that even
such decisions alone constituted oppression on the freedom of expression.
32. Although under the present conditions of the application regarding the applicant,
a decision of conviction that was finalized with the writ dated 29/5/2003 of the 9th Criminal
Chamber of the Supreme Court of Appeals regarding the incident which is the subject of the
application, it is understood that the execution of the sentence was halted as a requirement of
the amendment that has been made in article 169 of the Code No. 765 and a retrial was
launched at the 12th Assize Court of İstanbul so as to make a new decision to replace it. It is
seen whether or not the decision to postpone prosecution that has been taken as per the
provisional article 1 of the Code No. 6352 before the adaptation trial has ended is an
intervention to the freedom of expression of the applicant as per article 26 of the Constitution
and that for that reason it is inseparably linked to the merits of the case. Thus, although there
is so far no finalized decision of conviction about the applicant, this issue has to be discussed
by way of establishing a relation with the merits within the context of article 26 of the
Constitution.
33. The complaints of the applicant concerning the violation of his right to be tried
within a reasonable period as a result of the adaptation trial taking approximately 9 years and
concerning the violation of his freedom of expression as a result of the decision to postpone
prosecution which has been made about the applicant are not clearly deprived of grounds.
Besides, as there is no other reason for inadmissibility, it must be decided that the part of the
application as regards these complaints is admissible.
34. Members Serdar ÖZGÜLDÜR, Osman Alifeyyaz PAKSÜT, Burhan ÜSTÜN and
Nuri NECİPOĞLU have not concurred with this view.
b. Regarding the Claim that the Right to be Present at Trial was Violated
35. Paragraph (1) of article 45 of the Code on the Establishment and Trial Procedures of the
Constitutional Court dated 30/3/2011 and numbered 6216 with the side heading ''Individual
application right'' is as follows:
"Everyone can apply to the Constitutional Court based on the claim that one of the
fundamental rights and freedoms within the scope of the European Convention on Human
Rights and the additional protocols thereto, to which Turkey is a party, which are guaranteed
by the Constitution has been violated by public force."
36. Clause (2) of article 48 of the Code numbered 6216 is as follows:
“The Court, .... can rule on the inadmissibility of applications, which are clearly devoid
of grounds.”
37. According to the applicant the final sitting of the trial where the decision to
postpone prosecution has been taken was not performed publicly and the decision has not
been taken publicly. The applicant has claimed that as a result of the final decision that has
been taken by the Court of Instance regarding the postponement of prosecution over the file
without a hearing, his attorney could not participate in the trial hence his right to be tried
publicly has been violated. Yet, the essence of such claims relates to the applicant not being
allowed to be present in the trial. The Constitutional Court is not bound by the legal
qualification of the facts made by the applicant. For this reason, such claims of the applicant have
to be examined within the framework of "the right to be present at trial."
38. In paragraph one of article 36 of the Constitution, it is stated that everyone has the
right to make claims and defend themselves either as plaintiff or defendant and the right to a
fair trial before judicial bodies through the use of legitimate ways and means. Since the scope
of the right to a fair trial is not regulated within the Constitution, the scope and content of this right
needs to be determined within the framework of article 6 of the Convention with the side heading
“Right to a fair trial” (App. No: 2012/13, 2/7/2013, § 38).
39. Relevant part of Paragraph (1) of article 6 of the European Convention on Human Rights
(Convention) with the side heading "Right to a fair trial" is as follows:
In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
40. The implied requirements of a fair trial can be identified based on the concept of "fair
trial." The most important of such requirements is the "right to defense" which has been clearly
expressed in article 36 of the Constitution. Guaranteeing the rights of defense in criminal
procedures is a fundamental principle of a democratic society. For this reason, in order for the
performance of a fair trial, the measures taken during the execution of the trial have to be in
harmony with the sufficient and full exercise of the right to defense and such rights have to be
interpreted not theoretically and as an abstract but in a way that they will be effective and
practical (see. App.No. 2013/4784, 7/3/2014, § 32).
41. The first condition of the avail of the accused of the right to defend himself which
is the most important aspect of a fair trial is that he should have the opportunity to present
himself before a court so that he can make his defense. Although this has not been clearly
specified in article 6 of the ECHR, the right to be present in trial is a part of the right to a fair
trial in paragraph no. (1) of article 6 of the ECHR. For an accused to be present in a criminal case
which has been lodged against him is a general right and a part of the rights found in sub-paragraphs
(c), (d) and (e) of paragraph (3) of article 6 of the ECHR (see. Sejdovic v. Italy, App. No: 56581/00 ,
1/3/2006, § 81). Thus, as a consequence of the right to be present in trial, under the condition
that the exceptions in paragraph (1) of article 193 of the Code 5271 remain reserved, it has
been judged that a trial cannot be made regarding an accused who is absent (see. App.
2013/4784, 7/3/2014, § 41).
42. In the present incident, previously, three judgments of conviction have been
established regarding the accused in the case that was lodged for the crime of aiding an armed
terrorist organization and finally with the writ dated 29/3/1012 of the 9th Chamber of the
Supreme Court of Appeals the decision of the Court of First Instance concerning conviction
was reversed with some procedural justifications and the file was sent to the Court of First
Instance. Before the file was entered in the merits by the Court of Instance, on the date of
2/7/2012, the Code No. 6352 became effective and the Court, on the date of 10/7/2012
entered the file that was forwarded to it and decided the very same day without holding a trial
and with reliance upon the said Code that the prosecution that was being conducted about the
accused be postponed and the provisions of a three-year probation be applied. The issue that
needs to be resolved in the present incident is to determine whether or not the taking of the decision
concerning the postponement of prosecution over the file without the holding of a session
constitutes an intervention in the applicant's "right to be present in trial" and whether this has
affected the fairness of the trial or not.
43. As the name suggests the Code dated 2/7/2012 and numbered 6352 on the
Amendment of Some Codes So As to Render Judicial Services Effective and the
Postponement of Cases and Penalties as Regards the Crimes Committed Through the Press
has been prepared so as to accelerate judicial services. This has also been clearly specified in
the general justification of the Code (for more detailed evaluations regarding the said Code
see. CC, M.2013/92, D.2014/6, D.D. 16/1/2014).
44. It is understood that the courts of first instance after the Code No. 6352 came into
force , generally, in prosecutions regarding crimes committed by press and the media, upon
reversal or return by the Supreme Court of Appeals, decide that prosecution be postponed
without holding a hearing. Although in the Code there is no regulation regarding how to carry
out the practice, it is understood that taking of the decision to postpone the prosecution
without a trial in cases where it is explicit that a change will not occur as a result thereof
concerns the purpose of the Code regarding the acceleration of judicial services, expansion of
the freedom of expression and within this scope, finalization of the existing trials in relation to
crimes that have been committed through the press and the media.
45. The duty of the Constitutional Court within the scope of an individual application
is to determine whether or not the trial as a whole is fair, including the method of trial. With
the decisions dated 30/9/2002, 21/3/2007 and 8/12/2010, the applicant was convicted as a
result of the books that he has published and the Supreme Court of Appeals, of these
decisions, has approved the one which precedes the adaptation trial and reversed the others
not regarding the merits but the procedure. Considering that the existing legal structure
remains unchanged, the courts of instance and the Supreme Court of Appeals have openly
demonstrated their will regarding the act of the applicant.
46. The applicant, as a result of publishing the poetry books which are the subject
matter of the application, has been tried for a total of approximately 11 years and during this
time he has found many opportunities to make a defense before the court. Moreover the
decision concerning the postponement of prosecution is not related to whether the individual has
committed a crime or not. For this reason, the conclusion has been reached that the conduct of
such an examination without holding a trial and without summoning the applicant thereto has
not affected the fairness of the trial, as a whole.
47. On the other hand, the applicant has neither made a complaint regarding another
transaction with the claim that it has restricted his right to a fair trial nor a finding has been
encountered demonstrating that the applicant has not availed himself of his rights of defense,
when the case file and the trial process are examined as a whole.
48. For reasons explained, since no clear and visible violation in the transaction of trial
where the applicant claims that his right to defense was limited has been seen, it has to be decided
that this portion of the application be inadmissible for being "clearly devoid of basis" without being
examined regarding other conditions of admissibility.
2.
In Terms of Merits
a. The Claim that the Freedom of Expression Was Violated
49. The applicant has claimed that previously a judgment of conviction has been
established about him three times for having published the books which are the subject matter
of the application and that finally the decision to postpone the trial has been taken, hence his
freedom of expression was violated.
50. In the opinion of the Ministry, similar decisions of the Constitutional Court and
the European Court of Human Rights (ECtHR) have been reminded and it was informed that
the claims of the applicant have to be considered in tandem with such decisions. In the
opinion of the Ministry, it was stated that the freedom of expression formed one of the pillars
of a democratic society in the context of article 10 of the ECHR; that the freedom of
expression applies not only to information and thoughts which are considered to be in favor,
harmless or trivial, but also to information and thoughts which are aggressive, shocking or
disturbing for the state or a part of the society. Within this framework, it was stated that
whether there had been an intervention regarding the freedom of expression should be
considered on the basis of whether the intervention that had taken place was envisaged by the
law, whether the intervention was based on legitimate objectives and whether the intervention
was necessary in a democratic society.
51. The applicant repeated his statements in the application petition against the
opinion of the Ministry on the merits of the application.
52. Article 13 of the Constitution with the side heading “Restriction of Fundamental Rights
and Freedoms” is as follows:
“Fundamental rights and freedoms may only be restricted on the basis of the reasons
mentioned in the relevant articles of the Constitution and by law without prejudice to their
essence. These restrictions cannot be contrary to the letter and spirit of the Constitution, the
requirements of the democratic social order and of the secular Republic and the principle of
proportionality.”
53. Article 25 of the Constitution with the side heading of ''Freedom of thought and opinion''
is as follows:
“Everyone has the freedom of thought and opinion.
No one can be forced to reveal their thoughts and opinions for any reason and purpose;
no one can be condemned and blamed for their thoughts and opinions.”
54. Article 26 of the Constitution with the side heading of ''Freedom of expression and
dissemination of thought'' is as follows:
“Everyone has the right to express and disseminate their thoughts and opinions orally, in
writing, in pictures or through other means individually or collectively. This freedom includes
the liberty of receiving or imparting information or ideas without interference by official
authorities. The provision of this paragraph does not prevent the subjection of dissemination
by radio, television, cinema or other means to a system of permission.
The exercise of these freedoms may be restricted for the purposes of national security,
public order, public security, protecting the basic characteristics of the Republic and the
indivisible integrity of the State with its territory and nation, preventing offending, punishing
offenders, not revealing information duly classified as a State secret, protecting the reputation
or rights and private and family lives of others or protecting professional secrets set forth in
the law or duly performing the duty of hearing cases.
Regulatory provisions concerning the use of means to disseminate information and
thoughts shall not be deemed as the restriction of freedom of expression and dissemination of
thoughts on the condition that the transmission of information and thoughts is not prevented.
Forms, conditions and procedures to be applied in exercising the freedom of expression
and dissemination of thought are regulated by law.”
55. The relevant part of article 27 of the Constitution with the side heading of ''Freedom of
Science and Art'' is as follows:
"Everyone has the right to freely learn and teach, express and disseminate science and
art and conduct all types of research in these fields.
The right to disseminate cannot be exercised in order to ensure that the provisions of
articles 1, 2 and 3 of the Constitution are amended.
…”
56. The relevant parts of article 28 of the Constitution with the side heading of ''Freedom of
the press'' are as follows:
“The press is free; it cannot be censored. The establishment of a printing house cannot be
subjected to a condition of getting permission and depositing a financial guarantee.
(Abolished paragraph two: 3.10.2001-4709/10 art.)
The State takes the measures to ensure the freedom of the press and getting information.
Provisions of articles 26 and 27 of the Constitution are applied in the restriction of the
freedom of the press.
Anyone who writes any type of news or articles which threaten the internal or external
security of the State, the indivisible integrity of the State with its territory and nation, which
tend to encourage offending, riot or insurgence or which have any relation to secret
information belonging to the State, or has them printed, or anyone who prints or gives to
someone else such news or articles for the same purpose will be responsible as per the
provisions of the law regarding these offenses.
57. The Constitutional Court is not bound by the legal qualification of the facts made
by the applicant, it appraises the legal definition of the facts and cases itself. In the present
incident which is the subject of the application, the applicant has been tried as a result of the
two books of poetry that he has published and finally the decision to postpone the prosecution
that was conducted regardinng him was taken.
58. The means which can be resorted to in the exercise of the freedom of expression and
dissemination of thought are listed in article 26 of the Constitution as ''orally, in writing, in pictures or
through other means'' and with the expression ''other means'', it is demonstrated that all kinds of
means of expression are under constitutional protection (App. No:2013/2602, 23/1/2014, §43).
59. Apart from this, similarly to the publication of the books of poetry that are the
subject of the application, the freedom to freely express and publish art has also been
specifically protected in article 27 of the Constitution. The main regulation in the field of the
freedom of the press is found under article 28 of the Constitution. In addition to article 28 of
the Constitution, article 29 refers to the right to periodicals and non-periodicals and article 30
refers to the protection of press equipment. The right to use mass communication tools other
than the press owned by public entities is regulated under article 31 of the Constitution.
Moreover, expressions contained within the provisions of the Constitution regulating the freedom of
the press such as [those who...] ''write'', ''print'', ''give to someone else'', ''preventing the
distribution'', ''confiscation'', ''periodical publication'' and ''non-periodical publication'' may only be
used for means of mass communication such as ''newspapers'', ''books'' and ''journals'' which can be
printed and propagated. Therefore, according to the Constitution, the press is one of the means
of mass communication; however, it is separated from other means of mass communication
and specially protected(See App No. 2013/409, 25/6/2014, § 68).
60. In paragraph one of article 28 of the Constitution it is prescribed that the press is
free and cannot be censored, in paragraph three, that the state has a positive liability
concerning the freedom of the press, in paragraph four, that the provisions of articles 26 and
27 of the Constitution shall apply in the event of limitation of the freedom of the press and in
paragraph five, the legitimate aims of interventions that will be made in the freedom of the
press have been listed.
61. There is no doubt and conflict regarding that the freedom to print written
documents and books is an inseparable part of the freedom of expression. As demonstrated
above, although in the Constitution there are more detailed arrangements regarding the
freedom of expression, it was deemed that the evaluation of the application under existing
conditions within the scope of article 26 of the Constitution which is the basic arrangement
concerning the freedom expression.
62. The freedom of expression which is not an absolute right but one that can be
limited, is subject to the limitation regime of the fundamental rights and freedoms contained
within the Constitution. Reasons for limitation are included in clause two of article 26
regarding the freedom of expression, clause two of article 27 regarding the freedom of science
and arts and and clause four et seq. of article 28 regarding the freedom of the press. However,
it is also clear that there must be a limit to the limitations aimed at these freedoms. The
criteria under article 13 of the Constitution must be taken into consideration as regards the
limitation of fundamental rights and freedoms. For this reason, supervision of the limitation
which has been brought for the freedom of expression has to be carried out within the scope
of article 26 of the Constitution, within the framework of the criteria in article 13 of the
Constitution and with a consideration for other detailed articles concerning the freedom of
expression.
63. The freedom of expression refers to the individuals' ability of having access to the
news and information, other people's opinions, not being condemned due to the opinions and
convictions they have acquired and of freely expressing, explaining, defending, transmitting
to others and disseminating these either alone or with others through various methods.
64. The freedom of expression directly impacts a significant part of other rights and
freedoms enshrined in the Constitution. Indeed, the press, which is the main means of
dissemination of thought through the press and publications in the form of newspapers,
journals and books, is one of the ways of exercising the freedom of expression and
dissemination of thought. The freedom of the press is guaranteed not as a separate article in
the ECHR but under article 10 which regards the freedom of expression. Article 10 of the
ECHR guarantees not only the contents of thoughts and opinions but also their means of
transmission. On the other hand, the freedom of the press is specially regulated under articles
28-32 of the Constitution(App No. 2013/409, 25/6/2014, § 73).
65. The freedom of the press covers the right to explain and interpret thoughts and
opinions via means such as newspapers, journals and books and the right to publish and
distribute information, news and criticisms. The freedom of the press ensures that the
individual and the society are informed by performing the transmission and circulation of
thoughts. The expression of thoughts, including those who oppose the majority, via all sorts
of means, garnering supporters to the thoughts which have been explained, fulfilling and
convincing into fulfilling the thoughts are among the requirements of the pluralistic
democratic order. Therefore, the freedom of expression and dissemination of thought and the
freedom of the press are of vital importance for the functioning of democracy. (App.
No.2013/409, 25/6/2014, § 74).
66. In a democratic system, the practices and actions of the state should be under the
supervision of the press and also the public opinion as much as the judicial and administrative
officials. Printed, audio or visual press guarantees the sound functioning of the democracy and
individuals' realization of themselves by way of strictly scrutinizing the political decisions,
actions and negligences of the organs which exercise public power and facilitating citizens'
participation to decision making processes. For this reason, freedom of the press is a vital
freedom for all, which is valid for all (App.No. 2013/409, 25/6/2014, § 75).
67. The freedom of the press, which complements and ensures the exercise of the
freedom of expression is not absolute and limitless, similar to the freedom of expression. In
order for the press to be able to fulfill its social mission, it needs to act with a sense of
responsibility as much as it should be free. Despite the fact that the press needs to abide by the
limitations introduced in order to prevent threats against the internal or external security of the
State, the indivisible integrity of the State with its territory and nation, encouraging offending,
riot or insurgence stipulated under articles 26, 27 and 28 of the Constitution, it also has the
right to provide information in political matters. On the other hand, the people also have the
right to obtain this kind of information. The freedom of the press constitutes one of the best
means of transmitting various political opinions and attitudes to the public opinion and
forming a opinion regarding these. (for a similar decision see. App.No. 2013/409, 25/6/2014,
§ 76).
68. In the light of the above mentioned principles, in the incident which is the subject
of the application, during the evaluation of whether or not the freedom of expression has been
violated, first whether the intervention was present or not and then whether it relied on right
reasons or not will be evaluated.
i. Concerning the Existence of the Intervention
69. The applicant has claimed that previously three judgments of conviction have
been made about him for he has published the books of poetry which are the subject of the
application and even if in the end a decision to postpone the prosecution has been taken his
freedom of speech was violated as a result of the direct effect of the prosecution launched on
him. Moreover, the applicant has also claimed that the risk of being subjected to yet another
prosecution within the probation period which was being implemented about him for a
judgment of conviction was established about him and the risk of being sentenced still
lingered, that the present situation constituted an oppression on his freedom of expression.
70. According to the applicant, the present fear of prosecution is real and this affects
his publishing activities, even more so creating stress and anxiety and seriously limits his
works.
71. The Ministry claims that presently regarding the applicant are no conviction
decisions that have been taken regarding the matter which is the subject of the application.
72. The presence of an intervention against the right to freedom of expression of the
applicant as alleged by him depends on the determination of whether or not a measure which
victimizes as a result of the violation of his right that has been guaranteed under article 26 of the
Constitution has been taken (see. Altuğ Taner Akçam/Turkey, App. No: 27520/07, 25/10/2011,
§ 65). Within this scope, the case law of the ECtHR concerning that an individual needs to have been
affected directly by the measure concerned in order to be able to claim that s/he is the victim of any
negligence shall be guiding for the solution of the matter (see. Klass and others/Germany, App.
No: 5029/71, 6/9/1978, § 33)
73. In the present application one has to take into consideration that although there is
not a finalized decision of conviction about the applicant, the latter has been directly affected
by the prosecution which lasted for about 11 years since the year 2002 and the claim that the
risk of being the subject of an investigation and prosecution still prevails for he is a publisher.
Within this scope it has to be determined whether or not the ongoing threat of prosecution
about the applicant which is still prevalent refers to an intervention by way of taking into
consideration the trial process which is the subject of the existing application.
74. In the material incident, a public action has been lodged at the Office of the
Chief Prosecutor at the DGM in İstanbul in order for the punishment of the applicant for the
crime of aiding the Terrorist Organization PKK through the press for he has published the two
books concerned and on the date of 30/9/2002 the DGM No.4 in İstanbul decided that the
applicant be sentenced for the crime of aiding the terrorist organization. The decision
concerned has been finalized upon approval by the Supreme Court of Appeals. Then during
the execution phase, as a result of the amendment of the code, it was decided that execution
be stopped and as a result of the trial that has been carried out the applicant, with the decisions
dated 21/3/2007 and 8/12/2010 of the 12th Assize Court of İstanbul, was convicted twice for
making the propaganda of the terrorist organization and the decisions concerned have been
reversed not regarding the merits but procedure. At the end of the re-trial, with the decision
dated 10/7/2012 of the 12th Assize Court of İstanbul it was decided that the prosecution that
was being conducted regarding the applicant be postponed and that the provisions of
probation be applied regarding the applicant for three years and this decision has been
finalized upon the dismissal of the objection that has been made by the office of objection
(see. §§ 8-17).
75. Paragraph no. (1) of the provisional article 1 of the Code No. 6352 regulates the
postponement of the lodging of a public action during the investigation phase, without
seeking the conditions in article 171 of the Code of Criminal Procedure No. 5271 dated
4/12/2004, postponement of the prosecution during the prosecution phase and postponement
of the execution of the provisions of conviction in provisions of conviction that have been
finalized, until the date of 31/12/2011 and as a result of a crime which, according to its basic
form, requires an administrative fine or a sentence of imprisonment the upper limit of which
is not more than five years and which has been committed by way of press and media or
through other methods of disclosure of thoughts and opinions In the incident which is the
subject of the application, the prosecution which was ongoing about the applicant has been
postponed and it was decided that the provisions of a three-year provision be implemented
regarding the applicant.
76. In cases where the person regarding whom a decision for the postponement of the
prosecution that has been launched about him/her has been taken in line with paragraph no.
(2) of the provisional article 1 of the Code No. 6352 does not commit a new crime through the
press and the media or by way of other methods of disclosing thoughts and convictions within
three years from the date of the decision of postponement, a decision of no grounds for
prosecution or of discontinuation shall be taken; in the event that a new crime is committed
during this time, and if s/he is convicted to a sentence with a judgment that has become final
because of such crime the postponed investigation or prosecution shall resume.
77. There is also the possibility that the applicant, being the owner of a publishing
house, can be subjected to investigation and prosecution in the future for expressing his
thoughts or as a result of his press activities and also is the possibility that the prosecution
concerning the existing application which has been postponed revives. Furthermore, in the
event that one recommences prosecution, considering that the applicant has previously been
convicted three times by the court of first instance for having published the poetry books
concerned, the threat of being sentenced again still lingers.
78. The existing application concerns the freedom of expression and that as the status
of the applicant as being kept under probation is known, this creates some setbacks for the
applicant. Such setbacks shall be taken into consideration during the determination of the
victimization status (see. Altuğ Taner Akçam/Turkey, App. No: 27520/07, 25/10/2011, § 67).
The anxiety of being subjected to sanctions have a suspensive effect on individuals and even if, in the
end, there is the possibility that the person concerned stands the chance of being cleared from the
crimes s/he is charged with there is the risk that they might, under this effect, refrain from disclosing
their thoughts or pursue their printing activities in the future (for similar evaluations see. Lombardo
and Others/Malta, App. No: 7333/06, 24/4/2007, § 61).
79. As a conclusion, the applicant, even if he is not yet convicted because of the
books that he has published, it can be accepted that the possibility that the trial which has
been postponed can resume creates in him stress and the anxiety of being punished.
Considering that he was tried and convicted before and furthermore the said conviction has
been approved by the Supreme Court of Appeals, the conclusion has been attained that the
risk for the applicant of being subjected to prosecution and of being sentenced later is real.
Under these conditions, it has to be accepted that the freedom of expression of the applicant
has been intervened in within the framework of article 26 of the Constitution.
ii. Concerning the Intervention Resting on Valid Ground
80. The interventions mentioned above will constitute a violation of article 26 of the
Constitution unless they rest on one or more of the valid grounds stipulated under paragraph
two of article 26 and unless they fulfill the conditions stipulated under article 13 of the
Constitution. As a result, whether the limitation is in line with the conditions of bearing no
prejudice to the essence, being indicated under the relevant article of the Constitution, being
envisaged by law, not being contrary to the letter and spirit of the Constitution, the
requirements of the democratic social order and of the secular Republic and the principle of
proportionality envisaged under article 13 of the Constitution or not needs to be determined.
1. Lawfulness of the Intervention
81. A claim regarding the existence of a contrariness against the condition of the
intervention being made with ''the law'' contained within article 13 and clause five of article 26 of the
Constitution has not been made. As a result of the evaluations that have been made, it s concluded
that article 169 of the Code No. 765, article 7 of the Code No. 3713 and the provisional article 1 of
the Code No. 3713 satisfy the criterion of "proportionality."
2. Legitimate Purpose
82. The applicant claimed that the objective of the intervention which is the subject
of the complaint was to prevent the political views in the books.
83. In order for an intervention made to the freedom of expression to be legitimate, it
needs to be aimed at the objectives of protecting national security, public order, public
security, the basic characteristics of the Republic and the indivisible integrity of the State with
its territory and nation, preventing offending, punishing offenders, not revealing information
duly classified as a State secret, protecting the reputation or rights and private and family lives
of others or protecting professional secrets set forth in the law or duly performing the duty of
hearing cases stipulated under clause two of article 26 of the Constitution. (see. App. No.
2013/409, 25/6/2014, § 84).
84. Trial of the applicant on grounds of the publication of the books which are the
subject matter of the application relies on the claims that the poems which have been
published in the said books are aiding the organization and the members and Abdullah
Öcalan, who is the founder and the leader of the armed illegal terrorist organization PKK, the
name of which in Turkish is the Labor Party of Kurdistan, are praised therein, their terrorist
activities are demonstrated as a fight for freedom, hence the propaganda of the terrorist
organization is made.
85. When the indictment that has been drawn up regarding the applicant and the
decisions of the courts of instance are considered as a whole, the conclusion has been reached
that the trial of the applicant is of the nature of being an extension of the objectives and
activities that have been determined by the State within the scope of the fight against the
activities of the terrorist organization PKK.
86. Not only is the PKK accepted as an armed terrorist organization by the Turkish judicial
power, but it is also included under the name of ''PKK/KONGRA-GEL'' in the list of ''the principal
terrorist organizations which currently pursue their activities in Turkey'' published by the Turkish
National Police. The PKK has been accepted by the European Union as a terrorist organization since
the decision of Council Common Position of the Council of Europe dated 27 December 2001 on the
Application of Specific Measures to Combat Armed Terrorism. Moreover, the PKK is also included
in the list of terrorist organizations of the United States of America (USA) and accepted as a
terrorist organization by numerous countries of the region such as Syria, Iraq and Iran and
international organizations such as the United Nations and NATO. Moreover, the PKK is also
included in the list of drug traffickers of the USA. (see. App. No. 2013/409, 25/6/2014, § 87).
87. It was concluded that trial of the applicant due to publishing books which are
subject of the application was part of the efforts towards national security, public order,
public security, preventing offending and punishing offenders within the scope of the fight
against the activities of the PKK terrorist organization and that this bears a legitimate purpose
within the scope of clause two of article 26 of the Constitution regarding the freedom of
expression.
3. Necessity and Proportionality in a Democratic Society
88. The applicant has claimed that in the books that he has published, there are no
calls for use of force and violence or for other terrorist methods, that the intervention in his
freedom of expression where he was tried because of some political assessments regarding
actual events is contradictory to the requirements of a democratic society.
89. It was stated in the Ministry's opinion that in the event that an intervention aimed at the
freedom of expression existed, whether ''relevant and sufficient justifications about the matter''
which would justify the measures taken were brought forward and whether ''there existed a
reasonable balance between the objective and means of limitation'' needed to be evaluated with a
view to the requirements of a democratic society.
90. For the freedom of expression is not absolute, it may be the subject of some
limitations. An evaluation of whether or not the limitations that have been listed in paragraph
two of article 26 of the Constitution are congruous with the requirements of a democratic
society and the principles of proportionality which are guaranteed under article 13 of the
Constitution has to be made (see. App. No. 2013/409, 25/6/2014, § 91).
91. In the justification of the first version of article 13 of the Constitution "In the second
paragraph of the article the measure that has to be observed at all times during the limitation of
rights and freedoms; that is, the limit of the limitations has been prescribed. In other words, it was
stated that limitations that will be applied to rights and freedoms or the restrictive measures that will
be prescribed in relation thereto shall not be in contrast with the understanding of a democratic
regime; should be reconcilable with the generally accepted democratic regime understanding" It is
stated in the justification for the amendment made in the Constitution with article 2 of the Law
Concerning the Amendment of Some Articles of the Constitution of the Republic of Turkey dated
3/10/2001 and numbered 4709 that ''Article 13 of the Constitution is re-regulated in line with the
principles contained within the European Convention on Human Rights''.
92. The democracy stipulated by the Constitution of 1982 needs to be interpreted with
a modern and libertarian understanding. The criterion of ''democratic society'' clearly reflects the
parallelism between article 13 of the Constitution and articles 9, 10 and 11 of the ECHR which
contain the ''requirements of a democratic societal order''. In this regard, the criterion of
democratic society has to be interpreted on the grounds of pluralism, complaisance, open
mindedness and tolerance (see. App. No. 2013/409, 25/6/2014, § 93).
93. Indeed, as per the established case law of the Constitutional Court, ''Democracies are
regimes in which the fundamental rights and freedoms are ensured and guaranteed in the broadest
manner. The limitations which bear prejudice against the essence of the fundamental rights
and freedoms and render them completely non-exercisable cannot be considered to be in
harmony with the requirements of a democratic societal order. As a result, the fundamental
rights and freedoms may be limited exceptionally and only without prejudice to their essence
to the extent that it is compulsory for the continuation of the democratic societal order and
only by law. (CC, M.2006/142, D.2008/148, D.D. 24/9/2008) In other words, if the limitation
which is introduced halts or renders extremely difficult the exercise of the right and freedom
by bearing prejudice against its essence, renders it ineffective or if the balance between the
means and objective of the limitation is disrupted in violation of the principle of
proportionality, it will be against the democratic societal order (See CC, M.2009/59,
D.2011/69, D.D. 28/4/2011; CC, M.2006/142, D.2008/148, D.D. 17/4/2008;App
No:2013/409, 25/6/2014, § 94).
94. Hence, the freedom of expression and dissemination of thought and, within this scope,
the freedom of the press, which constitute one of the main pillars of the society, applies not only for
''thoughts'' which are considered to be in favor, harmless or not worthy of attention, but also for
news and thoughts which are against the State or a part of the society, which is shocking for them or
which disturbs them. Because these are the requirements of pluralism, complaisance and open
mindedness (see. Handyside v. United Kingdom, App. No: 5493/72, 7/12/1976, § 49).
95. Another guarantee which will intervene in all kinds of limitations to be introduced to
rights and freedoms is the ''principle of proportionality'' expressed in article 13 of the Constitution.
This principle is a guarantee which needs to be taken into consideration with priority in
applications regarding the limitation of fundamental rights and freedoms. Although the
requirements of a democratic societal order and the principle of proportionality are regulated
as two separate criteria under article 13 of the Constitution, there is an inseparable bond
between these two criteria. Indeed, the Constitutional Court drew attention to this relationship
between necessity and proportionality in its previous decisions and decided that there needed to be
a reasonable relationship and balance between the objective and the means by stating that ''[Any
limitation aimed at fundamental rights and freedoms] needs to be examined to see whether it is of
the necessary quality for the democratic societal order, in other words, whether it fulfills the objective
of public interest which is sought while serving as a proportionate limitation allowing for the least
amount of intervention to fundamental rights...'' (CC, M.2007/4, D.2007/81, D.D. 18/10/2007).
2013/409, 25/6/2014, § 96).
96. According to the decisions of the Constitutional Court, proportionality reflects the
relationship between the objectives and means of limiting fundamental rights and freedoms.
The inspection for proportionality is the inspection of the tool that has been selected to reach
the objective, by departing from the sought after objective. For this reason, in interventions in
the field of freedom of expression has to be assessed whether or not the intervention that has
been chosen so as to reach the targeted aim is available, necessary and proportionate (App.
No. 2012/1051, 20/2/2014, § 84).
97. In this context, the main axis for the evaluations that are to be carried out regarding the
incident which is the subject of the application will be whether the courts of instance which caused
the intervention could convincingly put forward or not whether the justifications they relied on their
decisions are in line with the principles of ''necessity in a democratic society'' and ''proportionality''
with a view to limitation of freedom of expression (for judgments of the ECtHR in the same vein see
Gözel and Özer v. Turkey, App. No: 43453/04, 31098/05, 6/7/2010 § 51; Gündüz v. Turkey, App.
No: 35071/97, 4/12/2003 § 46). Thus, in the event of acceptance that the balance between the
freedom of expression which has been intervened in as a result of the books that the applicant
has published and the trial and maintenance of the applicant under the threat of a sentence is
proportionate, then the conclusion can be attained that the justifications concerning the trial of
the applicant as a result of publication of the books are credible, or in other words, are
relevant and sufficient (B. No: 2012/1051, 20/2/2014, § 87; B. No: 2013/409, 25/6/2014, §
97).
98. In the assessments that will be made, it has to be taken into consideration that the
books concerned are books of poetry and that the subjects that have been handled either in the
preface or in the poems concern social matters that relate to a portion of the society. Within the
context of article 26 of the Constitution, it has to be pointed out that the offices that exercise public
authority in limiting political speeches concerning the interests of the public or discussions
concerning social problems have a very narrow margin for discretion (for a view in the same
direction see. Başkaya and Okçuoğlu v. Turkey, App. No: 23536/94, 24408/94, 8/7/1999, §
62). On the other hand, although no limitation has been introduced to the freedom of
expression as of its content, in areas such as racism, hate speech, war propaganda,
encouraging violence and incitation, calls to riot or justifying terrorist acts, which are the
borderlands of such freedoms, the State authorities have a wider jurisdiction for discretion in
their interventions (for similar decisions of the ECtHR, see. Gözel and Özer v. Turkey, § 56;
Gündüz v. Turkey, § 40). For this reason, firstly it has to be assessed whether or not the
propaganda of the terrorist organization PKK is made in the books concerned, as indicated in
the indictment and the decision of the courts of instance.
99. In individual applications regarding the freedom of expression examination of
expressions by tearing them away from their contexts may lead to erroneous results in the
application of the principles contained within articles 13 and 26 of the Constitution and in carrying
out an acceptable evaluation of the findings obtained . Within this framework, the fact that, for
instance, the expression of a thought constitutes a threat for ''national security'' when torn away
from its context, does not in and of itself justify an intervention targeting this expression. For this
reason, the expressions in the present application concerning the terrorist organization PKK
and the context in which they have been expressed, the books being books of poetry, the
identity of the author of the books, the time of their writing, the purpose of their writing, the
identities of the persons whom they address, possible effects and the entirety of the rest of the
expressions therein, which have been specified in the decisions of the courts of instance, have
to be handled as a whole. Also, another requirement is that one has to pay attention to the content
of the thoughts that have been put forth in the poems concerned and the context in which they have
been spoken out, and make an assessment as to whether or not the intervention was "fit for the
sought after objectives" and whether or not the justifications as stated by national authorities were
"relevant and sufficient" (for similar evaluations see. App. No: 2013/409, 25/6/2014, § 100).
100. Indeed, the ECtHR has always stressed in its established case laws that in order to
determine whether expressions or texts regarding expressions of thought encourage violence when
considered in their entirety, it would be appropriate to take into consideration the terms used and
the contexts in which these were written. (Özgür Gündem v.Turkey, App. No: 23144/93, 16/3/2000
§ 63; Sürek v. Turkey, App. No: 24762/94, 8/7/1999 § 12, 58 )
101. On the other hand, while making an assessment of whether or not the views that are
found in the books concerned are encouraging violence, one must not lose from sight that the means
that has been employed are books of poetry, which in contrast with instruments of mass media (for
similar decisions of the ECtHR, see. Alınak/Turkey, App. No: 40287/98, 29/3/2005, § 41)
appeal to a narrower section of the society and which aim for the indoctrination of the
ideology of the terrorist organization PKK(for a similar decision see. App. No: 2013/409,
25/6/2014, § 106).
102. The authors of the poems that are included in the books which are the subject of
the application are not known. The authors in the poems concerned are hailing the founder
and the director of the terrorist organization PKK, voiceing their grief for the latter being in
prison. Moreover, in some of the poems that have led to the trial of the applicant, the
members of the terrorist organization who are the main actors of the occurrence of incidents
of violence of severe nature that are seen in some parts of Turkey and of losses to life and
property and who are first hand addressees of the thoughts that are found in the book are
being praised. Some parts of the Turkish territories is being called as Kurdistan and acts of
terror are defined as a national war of independence.
103. The depiction of a geographical region where a certain group of people live alone
cannot be qualified as the declaration of an expression targeting the integrity of the country
where that region is located as stated by the Constitutional Court in its previous decisions.
However, the meaning of defining a part of the territory of Turkey as ''Kurdistan'' can only be
determined through a joint evaluation of the expressions used in the book and the special
circumstances under which the book was published. (see. App. No: 2013/409, 25/6/2014, § 102).
104. Within this context, article 26 of the Constitution and more specifically article 27 also
include the artistic freedom of expression within the scope of acquisition of information and ideas
and dissemination of thoughts and such constitutional guarantees create the opportunity for the
disclosure, dissemination and exchange of all sorts of cultural, political and social information and
opinions (bkz. Mutatis mutandis, Müller and Others/Switzerland App. No: 10737/84,
24/5/1988 § 27). As the ECtHR draws attention thereto often, persons who create, distribute
or exhibit works of art like the poems in the books which are the subject of the application,
have a considerable input in the dissemination of ideas and opinions and as such artistic works
are of great importance for a democratic society. For this reason, the State has to act more
sensibly regarding the liability of not to make unnecessary interventions in the freedoms of
expression of persons who have created the work of art (see. Müller and Others v. Switzerland
App. No: 10737/84, 24/5/1988 § 33).
105. On the other hand, considering that the books concerned are books of poetry, one
must not forget that articles 26 and 27 of the Constitution guarantees not only the content of the
ideas and information that have been expressed but also the modality of expression thereof and that
from this angle the books concerned are poems which can be considered as fiction (Mutatis
mutandis, see. Alınak v. Turkey, App. No: 40287/98, 29/3/2005, § 43).
106. When the book was examined as a whole, it was not considered that it praised
violence; that it incited and encouraged individuals to adopt terrorist methods, in other words,
to resort to violence, hatred, seeking revenge or to armed resistance. To the contrary, in the
poems in the books that have been used as the basis of the conviction of the applicant, the
unrest felt because of the imprisonment of the leader and the director of the terrorist
organization PKK, the grief felt after the persons who have died in armed conflicts have been
narrated with the language of poetry and quite abstractly; indicating that the persons who have
died in the region defined as Kurdistan have died for freedom.
107. It has to be considered also that the poems concerned have been published as
books, hence reached a much narrower audience of readers in comparison with tools of mass
communication. This situation significantly alleviates the impact of the books on "public order".
Although there are, in some of the poems, expressions that are disturbing for a part of the public,
because of the artistic nature of poems and their limited effect, these expressions have to be
considered as an outburst of the sadness that is felt on the face of tragic events more than a call for
violence (Mutatis mutandis, see. Alınak/Turkey, App. No: 40287/98, 29/3/2005, § 45).
108. It has to be pointed out that the offices which exercise public authority have a
very narrow margin of discretion in limiting artistic expressions such as the book that the
applicant has published. Limitations cannot be imposed on thoughts which are not pleasant
for public authorities or a part of the society unless they encourage violence, justify terrorist
acts and support the formation of the feeling of hatred (see § 96). For this reason, the
conclusion has been reached that the intervention directed at the freedom of expression of the
applicant was not necessary and proportionate in a democratic society for the applicant has
been subjected to investigation and prosecution for as long a period as 11 years for having
published the books that are the subject of the application and for the risk that he may still be
subjected to prosecution still continues.
109. Moreover, it should be noted that although the applicant is being tried for
almost 11 years since the year 2002 for aiding the armed terrorist organization and for making
the propaganda of the armed terrorist organization the books concerned are being traded
freely, without incurring any limitations or whatsoever.
110. Considering the issues above, the opinion has been formed that subjecting the
applicant to investigation and prosecution for as long a time as almost 11 years because of the books
that he has published, and making a decision to postpone the prosecution, keeping him under the
threat of a sentence are not in compliance with the aspired aims and hence not necessary "in a
democratic society." For these reasons, it should be decided that the applicant's right to a fair
trial which is guaranteed in Article 26 of the Constitution was violated.
111. Members Osman Alifeyyaz PAKSÜT, Nuri NECİPOĞLU and Burhan ÜSTÜN
have not concurred with this view.
b. Examination Regarding the Right to Be Tried Within A Reasonable Period
112. The applicant has claimed that his right to be tried within a reasonable period was
violated for the investigation and the prosecution that were being carried out about him have
not been finalized within a reasonable duration.
113. Deciding for the admissibility of the application which includes the violation of a
right that is outside of the joint area of protection of the Constitution and the Convention is
not possible (App. No: 2012/1049, 26/3/2013, § 18), and the sub principles and rights which
emanate from the text of the Convention and from the decisions of the ECtHR and which are
material displays of the right to a fair trial are, essentially, the aspects of the right to a fair trial
that has been covered in article 36 of the Constitution. Also the Constitutional Court in many
of its decisions where it has carried out examinations as per article 36 of the Constitution, by
way of making an interpretation of the provision concerned under the light of article 6 of the
Convention and the case law of the ECtHR, covers the principles and rights that have been
both found in the content of the wording of the Convention and included in the scope of the
right to a fair trial in article 36 of the Constitution. The right to trial in a reasonable time
which constitutes the basis of the concrete application also falls into scope of the right to a fair
trial in accordance with the aforementioned principles and moreover, it is clear that article 141
of the Constitution which stipulates that the conclusion of cases with minimum expense and
as soon as possible is the duty of the judiciary should also be taken into account in the
evaluation of the right to trial in a reasonable time as per the principle of holism of the
Constitution (App. No: 2012/13, 2/7/2013, § -39).
114. Matters such as the complexity of the case, how many levels the trial has, the
attitude of the parties and relevant authorities during the trial and the quality of the interest of
the applicant in the expeditious conclusion of the case are the criteria to be taken into account
for the determination of whether the duration of a case is reasonable or not (App. No:
2012/13, 2/7/2013, §§ 41-45).
115. In compliance with article 36 of the Constitution and article 6 of the Convention,
persons have been granted the right to request that the allegations of crime that have been
directed in the penal field, in addition to conflicts regarding civil rights and liabilities, be
adjudged in reasonable time. Allegation of crime is the notification of a person by authorized
offices that s/he has committed a crime and in the determination of whether or not the
allegation that has been directed to the person in the penal field purports the quality of being
an allegation of crime, one has to assess the classification of such alleged crime in positive
arrangements, the real quality of the crime, the quality of the sentence prescribed for such
crime and the severity thereof. However, if the alleged act has been qualified as a crime in
penal codes and the rules of criminal code have been applied during the trial, it will be
accepted that it comes within the scope of the right to a fair trial without the performance of
an additional examination of applicability (App. No: 2012/625, 9/1/2014, § 31).
116.In the incident which is the subject of the application, a public action was lodged
by the Office of the Chief Prosecutor of the DGM of Istanbul with the indictment dated
14/1/2002 thereof concerning the punishment of the applicant for the crime of supporting the
Terrorist Organization PKK through the press. Within this scope, there are no doubts that the
trial that is based on the alleged crime about the applicant comes under the guarantee of
article 36 of the constitution (App. No: 2012/625, 9/1/2014, § 32).
117. In the assessment of reasonable time concerning the alleged crimes that are
directed in the penal field and disputes in relation thereto, as a rule, the commencement of
such time is the moment when the claim that s/he has committed a crime has been notified to
the person by authorized offices or when measures such as search and taking under custody
when s/he is first affected by the allegation are carried out. Since the applicant, in the
material incident, has complained about the lengthiness of the trial that was ongoing since the
decision of the DGM No. 4 of İstanbul concerning the reexamination of the file as a result of
the amendment of article 169 of the Code No. 765, this date regarding the evaluation of
reasonable time is the date of 20/2/2004. The ending date of such period, then, is the date on
which the final decision regarding the allegation of crime has been taken. However, since
there is the possibility of conducting the trial activities of applications which include the claim
of violation of the right to be tried in reasonable time concerning ongoing trials , the final
moment of the duration that will be taken as the basis of the evaluation shall be the date on
which a decision has been made regarding the individual application (App. No: 2012/13,
2/7/2013, § 34; App. No: 2012/625, 9/1/2014, § 32). Within this scope, it is understood that
the end date of such duration regarding the material trial activity is the date of 26/12/2012,
which is the date on which the decision concerning the postponement of the prosecution about
the applicant.
118. In the examination of the trial process which is the subject of the application, a
public action, upon the indictment dated 14/1/2002 of the Office of the Chief Prosecutor of
the DGM of İstanbul was lodged as a result of the applicant's publication, in the month of
January of the year 2002, of the two books which are the subject of the application, hence
aiding the Terrorist Organization PKK through the press and with the decision dated
30/9/2002 of the DGM No. 4 of İstanbul it was decided that the applicant be punished. The
9th Criminal Chamber of the Supreme Court of Appeals with its writ dated 29/5/2003,
approved the decision of the Court of First Instance and the decision was finalized. In the
phase of execution, as a result of the amendment of the code, it was decided with the decision
dated 20/2/2004 of the İstanbul DGM No. 4 that execution about the applicant be stopped and
on the same date, the adaptation trial commenced for the re-evaluation of the act of the
applicant considering the amended provision of the code. With the decision dated 21/3/2007
of the 12th Assize Court of İstanbul it was decided that the applicant be punished for having
made the propaganda of the terrorist organization; this decision has been reversed with the
writ dated 28/1/2010 of the 9th Criminal Chamber of the Supreme Court of Appeals. At the
end of the retrial that has been made, with the decision dated 8/12/2010 of the 12th Assize
Court of İstanbul the applicant was punished for having made the propaganda of the terrorist
organization and this decision has been reversed once again with the writ dated 29/3/1012 of
the 9th Criminal Chamber of the Supreme Court of Appeals. As a result of the retrial that has
been made, with the decision dated 10/7/2012 of the 12th Assize Court of İstanbul it was
decided that the prosecution that was being conducted about the applicant be postponed; with
the decision of dismissal of the objection dated 26/12/2012 of the 13th Assize Court of
İstanbul the decision of postponement of prosecution was finalized.
119. Claims concerning that trials before courts that are bound by trial procedures
which are prescribed in the Code No. 5271 have not been concluded in reasonable time have
previously been made the subject of individual applications and decisions that the right to be
tried in reasonable time has been violated have been taken by the Constitutional Court (App.
No: 2012/625, 9/1/2014, §§ 22-45).
120.Although the nature of procedural transactions that have to be carried out as a
result of the number of persons involved in the case and the nature of the case which is the
subject of the application reveal that the trial is a complex one, still, considering the case as a
whole, the conclusion has been reached that there a dimension that requires the making of a
different decision regarding the material application is not present and that there is an
unreasonable delay in the duration of the trial of 8 years 10 months and 6 days.
121. Due to the aforementioned reasons, it should be decided that the applicant's right
to trial in a reasonable time guaranteed by Article 36 of the Constitution was violated.
122. Members Osman Alifeyyaz PAKSÜT and Nuri NECİPOĞLU have not
concurred this view.
3. Implementation of Article 50 of the Code Numbered. 6216
123. The applicant requested that a material compensation of TRY 10.000,00 and a
moral compensation of TRY 30,000.00 be adjudged .
124. Paragraph (2) of Article 50 of the Code numbered 6216 with the side heading
''Decisions" is as follows:
"If the determined violation arises out of a court decision, the file shall be sent to the
relevant court for holding the retrial in order for the violation and the consequences thereof to
be removed, In cases where there is no legal interest in holding the retrial, the compensation
may be adjudged in favor of the applicant or the remedy of filing a case before the general
courts may be shown. The court, which is responsible for holding the retrial, shall deliver a
decision over the file, if possible, in a way that will remove the violation and the consequences
thereof that the Constitutional Court has explained in its decision of violation."
125. When the trial process which is about nine years concerning the dispute to which
the applicant is a party to is taken into account, it should be decided by discretion that a moral
compensation of TRY 6.650,00 be paid to the applicant in return for the moral damage which
cannot be compensated only by the determination of the violation.
126. As it was assessed that the determination of violation provides sufficient
satisfaction regarding the application concerning the freedom of expression, it has to be
decided that the request for compensation as a result of the intervention made in the freedom
of expression be dismissed.
127. Although a request for material compensation has been made by the applicant,
since it is understood that between the violation that has been identified and the material
damage claimed there is no link of causality, it has to be decided that the requests of the
applicant regarding material damages are dismissed.
128. It should be decided that the trial expenses of TRY 1,698.35 composed of the fee
of TRY 198.35 and the counsel's fee of TRY1,500.00 which were made by the applicant
and determined in accordance with the documents in the file be paid to the applicant.
129. Considering that the applicant is still under probation as a result of the decision to
postpone the prosecution regarding him, the threat of prosecution and punishment therefore
and that this is in violation of his freedom of expression, in the criminal case about the
applicant, it has to be decided that the file be sent as per paragraph (2) of article 50 of the
Code 6216 to its respective Court.
V. JUDGMENT
In the light of the reasons explained, it is decided UNANIMOUSLY on the date of
12/11/2014;
A. That;
1. His claim as to the effect that his right to be present in trial was violated is
INADMISSIBLE as "it is clearly devoid of basis,"
2. His claims regarding the violation of his freedom of expression and his right to be
tried in reasonable time are ADMISSIBLE, with the dissenting votes of Osman Alifeyyaz PAKSÜT,
Serdar ÖZGÜLDÜR, Nuri NECİPOĞLU and Burhan ÜSTÜN and with the MAJORITY OF VOTES,
3. His freedom of expression which is guaranteed with article 26 of the Constitution was
VIOLATED, with the dissenting votes of Osman Alifeyyaz PAKSÜT, Nuri NECİPOĞLU ile Burhan ÜSTÜN
and with the MAJORITY OF VOTES,
4. His right to be tried in reasonable time was VIOLATED, with the dissenting votes of
Osman Alifeyyaz PAKSÜT and Nuri NECİPOĞLU and with the MAJORITY OF VOTES,
B. The applicant be paid a compensation of 6.650,00 for immaterial DAMAGES and that
other requests of the applicant regarding compensation be DISMISSED,
C. That the trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and
the counsel's fee of TRY 1,500.00 , which were made by the applicant be PAID TO THE APPLICANT,
D. that the payment be made within four months starting from the application of the
applicant to the Ministry of Finance following the notification of the decision; that the legal
interest be applied for the period which elapses from the end of this period to the date of
payment in the event that there is a delay in the payment.
E. That one copy of the decision as per paragraph (2) of article 50 of the Code No.
6216 be sent to its respective court for due action.
President
Haşim KILIÇ
Deputy President
Serruh KALELİ
Deputy President
Alparslan ALTAN
Member
Serdar ÖZGÜLDÜR
Member
Osman Alifeyyaz PAKSÜT
Member
Zehra Ayla PERKTAŞ
Member
Recep KÖMÜRCÜ
Member
Burhan ÜSTÜN
Member
Engin YILDIRIM
Member
Nuri NECİPOĞLU
Member
Hicabi DURSUN
Member
Celal Mümtaz AKINCI
Member
Erdal TERCAN
Member
Muammer TOPAL
Member
M. Emin KUZ
Member
Zühtü ARSLAN
Member
Hasan Tahsin GÖKCAN
JUSTIFICATION OF DISSENTING VOTE
The decision of conviction that has been taken by the Court of first instance was
finalized upon approval by the writ No. M.2003/846, D.2003/963 dated 29.5.2003 of the 9th
Criminal Chamber of the Supreme Court of Appeals. In the stage of execution of the
aggravated fine sentence being converted from aggravated imprisonment, as a result of the
amendment made in article 169 of the Turkish Penal Code No. 765, upon the request of the
claimant dated 20.2.2004, a decision to cease the execution was taken and the "adaptation"
trial commenced; in the end of such trial, the verdict of conviction which was given twice by
the court of first instance was reversed twice for procedural reasons by the 9th Criminal
Chamber of the Supreme Court of Appeals and finally with as per the governing provision of
the provisional article 1 of the Code No. 6352 dated 2.7.2012 it was decided upon the decision
dated 10.7.2012 of the court of first instance that the prosecution that was conducted
regarding the applicant be postponed, the provisions of probation be applied regarding the
applicant for a duration of three years and the decision has been finalized by dismissal of the
objection made against such decision.
As the "adaptation trial" that was held as a result of the amendment which was made
in article 169 of the Code No. 765 and the decision to "postpone prosecution" that was taken
by the court of first instance in compliance with the provisional article 1 of the Code No. 6352
dated 2.7.2012 are not of the nature of being neither parts nor the continuation of the criminal
trial which was finalized upon approval on the date of 29.5.2003 which was claimed to have
led to the violation of freedom of expression and are phases of the trial with different legal
consequences which are totally independent from the finalized criminal trial. As a result of
such qualities that they purport, for the criminal trial that was finalized on the date of
29.5.2003 was found to belong to a period which precedes the date of 23.9.2012 on which the
individual application authority of the Constitutional Court commenced, there is no possibility
to examine the claims of the applicant concerning the "freedom of expression" whereby the
date of 26.12.2012 when the trial concerning the "postponement of prosecution" was finalized
is taken as the basis.
For reasons explained, having reached the conclusion that a decision of e dismissal
concerning the claims on this matter; we do not concur with the decision of the majority
concerning the examination of the merits of the matter.
Member
Serdar ÖZGÜLDÜR
Member
Burhan ÜSTÜN
Member
Nuri NECİPOĞLU
JUSTIFICATION OF DISSENTING VOTE
The application is based on the claims that the freedom of expression was violated and
the adaptation trial lasted very long.
Being of the view that the books of poetry that the applicant has published have the
nature of propaganda for terrorism, that the sentences ruled are not proportionate, excessive
and do not constitute an intervention which is not necessary in a democratic society, that the
need to adapt the sentence as a result of the amendments that have been made later in the
legislation in favor of the applicant cannot be interpreted as the same trial taking a long time,
that the adaptation trial is a new and a different process whereby the first decision of
conviction is outside of the authority of the Constitutional Court in terms of time and even if
considered otherwise, sufficient remedy has been provided regarding the victimization of the
applicant with the Code numbered 6352 that was ratified on the date of 2.7.2012, I do not
concur with the decision of violation.
Member
Osman Alifeyyaz PAKSÜT