Individual Application

The Facts

The applicants were sentenced to imprisonment or judicial fines due to the opinions they expressed in various ways or the actions they took part in meetings and demonstration marches, but were subject to a probation term for five years with a decision on the suspension of the pronouncement of the judgment (HAGB).

The Applicants’ Allegations

The applicants maintained that the decision on the suspension of the pronouncement of the judgment (HAGB) rendered due to various offences had violated their freedoms of expression and their right to hold meetings and demonstration marches.

The Court’s Assessment

The Court has previously held in a number of judgments that the decisions on the suspension of the pronouncement of the judgment and the probation term imposed due to various expressions of opinion constitute an interference with and violations of certain fundamental rights and freedoms of individuals, such as freedom of expression, freedom of the press, or the right to hold meetings and demonstration marches.

In the present applications, it was acknowledged that the decisions on the suspension of the pronouncement of the judgment, which were based on violations of various safeguards of the right to a fair trial, including equality of arms, the right to defence, the right to counsel, and the right to a reasoned decision, interfered with the freedom of expression or the right to hold meetings and demonstration marches. In this context, it is necessary to determine whether the interventions carried out with the decisions on the suspension of the pronouncement of the judgment, issued as a result of the separate proceedings against the applicants, comply with the legality criterion.

The current legal provisions are not sufficient to address the problems arising from the application of the institution of the suspension of the pronouncement of the judgment and cannot systematically eliminate the chilling effect on various fundamental rights of applicants, such as freedom of expression and the right to hold meetings and demonstration marches. As a matter of fact, neither the legal amendments introduced by Law No. 5271 regarding the HAGB institution, the relevant case-law of the Court of Cassation, nor the practice of the courts of first instance have been capable of resolving the problems pointed out in detail in the decision.

In conclusion, it has been established that the legislation constituting the institution of the HAGB suffers from structural problems that result in continuous violations of fundamental rights and freedoms, particularly freedom of expression, and that it is not possible to eliminate these problems by any means other than legislative regulation - for example, through the interpretations of the judicial organs. In the present circumstances, the courts of first instance and the Court of Cassation have been unable to prevent the violation of the constitutional rights of the applicants enshrined in Articles 26 and 34 of the Constitution by the HAGB institution, which has been implicated in all the decisions subject to the application.

In the light of all assessments carried out by the Constitutional Court, the Court has reached the conclusion that the interventions resulting from the application of the suspension of the pronouncement of the judgment, which constitute the subject matter of the present application, do not meet the criterion of legality.

Consequently, the Court has found violations of the freedoms of expression and the right to hold meetings and demonstration marches.