Individual Application

The Facts

The applicant’s sibling Y.D. and the latter’s friend E.K. were dismissed from their professions under the state of emergency decree laws (decree laws). During this process, E.K. started to protest his situation through various activities. The applicant, who is a documentary film-maker, also wanted to shoot a documentary film in order to express the problems experienced by those dismissed from public office under decree laws in the person of Y.D. and E.K. For this purpose, the applicant notified the district governor’s office on 7 September 2017 that she would shoot a documentary film. On 29 January 2018 she applied to the district governor’s office again and stated that the law enforcement officers had interfered with her filming and requested that the necessary facilities be provided, that the law enforcement officers be informed and that she be notified if there was a restraining order regarding the documentary filming.

On 1 March 2018 the applicant once again applied to the district governor’s office, requesting permission to film E.K. The district governor’s office informed the applicant that the events to be held province-wide between 2 March 2018 and 1 April 2018 were subject to permission in accordance with the decision of the governorship and that it would not be appropriate to film E.K. in the municipality square on the specified date. On 3 May 2018 the applicant applied to the district governor’s office again, stating that she could not obtain the footage required for the documentary film due to the constant interference by the law enforcement officers during the filming and requested that she be given a suitable date for filming. On 9 May 2018, the district governor’s office rejected the applicant’s request on the grounds that the state of emergency was still in force.

The applicant brought an administrative action, requesting the annulment of the aforementioned procedure and seeking the payment of 10.000 Turkish liras (TRY) as compensation. The administrative court dismissed the case. The applicant’s subsequent appeal was dismissed by the regional administrative court with final effect.

The Applicant’s Allegations

The applicant claimed that her freedom of expression had been violated due to denial of the request for permission to shoot a documentary film.

The Court’s Assessment

In the present case, the most important issue to be considered is the subject matter of the work to be produced. During a period when the state of emergency was still in force, the subject matter of a documentary, which concerned those dismissed from public office, might cause the organs exercising public power to be worried about the fact that their efforts to restore the public order disrupted by the coup attempt might be undermined.

Besides, the dismissal of tens of thousands of persons from public office under the decree laws, which indirectly affected many more persons, especially the family members of those dismissed, economically and socially, turned the issue into a social problem, regardless of whether the decisions were accurate. In this regard, when it comes to expressions of thoughts on highly controversial issues of public importance, it should be kept in mind that freedom of expression is vital for a democratic society and constitutes the fundamental values of democracy. Democracy is based on the ability to resolve problems through public debate. At this point, any interference with the exercise of freedom of expression in relation to works concerning social problems harms and jeopardizes democracy; therefore, it should be noted that the discretion entrusted to the public authorities in this sense is very limited. However, the public authorities enjoy broader powers in areas regarding, inter alia, war, terrorist propaganda and incitement to violence, which determine the limits of freedoms. For this reason, first of all, it should be assessed whether the documentary film requested to be shot served a terrorist propaganda as stated in the reasoning of the first instance decision. In order for such an assessment to be made, attention should be paid to the content of the thoughts expressed in the work in question as well as to the context in which they were expressed, and it should be evaluated whether the impugned interference served the purpose sought to be achieved.

In the examination of whether the content of the relevant work was aimed at terrorist organisation propaganda, the means employed should also be examined. The said work was intended to be shot as a documentary film. Expression of thoughts that do not contain statements inciting to violence, that do not pose the risk of committing terrorist crimes, such as the views of various groups on social or political aims as well as political, economic and social problems that they intend to achieve without resorting to violence, cannot be regarded as terrorist propaganda, even if they are characterized as ideological and strict. Therefore, the expression, dissemination, active, systematic and persuasive inculcation, indoctrination and recommendation of ideas –even if they are offensive to state authorities or a significant part of society– related to right-wing or left-wing ideologies, anarchist and nihilist movements, the social and political environment or socio-economic imbalances, ethnic problems, differences in the country’s population, the demand for greater freedom or criticism of the country’s regime fall into the protection of the freedom of expression.

In the present case, neither the administrative courts nor the inferior courts claimed that E.K. had praised a terrorist organisation or justified, incited and legitimized violence through the imputed act. Therefore, it should be acknowledged that the applicant only attempted to record E.K.’s protest demonstration occurring in the meantime.

Undoubtedly, the State’s interference with the freedom of artistic expression should be very limited. It should not be overlooked that the State has a wide range of instruments in realizing this limited interference. In this scope, the production of the work was directly prevented through denial of permission to shoot the relevant documentary film, whereas it was possible to cancel the shooting permission, to examine and classify the work after it was completed, and to make an evaluation according to the results of the examination and classification.

In the review of individual applications, the Constitutional Court does not interfere with the inferior courts’ assessment of the facts and interpretation of the law as long as the constitutional rights of individuals are not violated.

However, in the present case, the administration and the court of first instance failed to strike a balance between the applicant’s freedom of expression and the aim of protecting the public order; they also failed to demonstrate the superior interest in the fulfilment of the obligation to maintain the public order and complying with constitutional principles vis a vis the applicant’s freedom of expression.

The administration and the court of first instance hindered the production of the work by taking into consideration only a little part of it. They evaluated it out of its context and integrity, and failed to demonstrate on the basis of a relevant and sufficient justification that the contested interference was of an exceptional nature and served a pressing social need.

Consequently, the Court has found a violation of the freedom of expression.