Press Release No: Individual Application 79/21

Press Release concerning the Judgment Finding a Violation of the Right to Hold Meetings and Demonstration Marches due to Imprisonment for Inciting Illegal Meeting

On 7 September 2021, the First Section of the Constitutional Court found a violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution in the individual application lodged by Mahir Engin Çelik and Sakine Esen Yılmaz (no. 2016/8776).

The Facts

Mersin Provincial Organization of a political party notified the Mersin Governor’s Office, through the meeting organisation committee (the committee), that an open-air meeting would be held on 20 March 2012 for celebrating Newroz. Mersin Governor's Office notified one of the members of the said committee that the request for organising an event would be evaluated in accordance with the circular issued by the Ministry of Interior on 15 March 2012, which stated that the Newroz celebrations were allowed to be held only on 21 March 2012.

The applicants, directors of a labour union, attended the press statement held on 19 March 2012, upon the decision to participate in the Newroz celebrations issued by the Confederation to which their labour union was affiliated. During the relevant press statement, the applicants made statements that might create the impression that the members of the committee, who had notified the Governor's Office about the Newroz celebrations, took the necessary actions challenging the circular issued by the Ministry of Interior and that, therefore, the celebrations would be held on 20 March 2012 as previously determined. At the end of the press statement, while the applicants were preparing to distribute the invitation leaflets for the Newroz celebrations planned to be held on 20 March 2012, they were taken into custody by the security officers, and the leaflets were seized in accordance with the decision of the (abolished) 1st Chamber of the Mersin Magistrates’ Court.

Criminal proceedings were instituted against the applicants for inciting people to an illegal meeting and demonstration march on grounds of distributing the aforementioned leaflets. At the end of the proceedings before the 7th Chamber of the Mersin Criminal Court, the applicants were respectively sentenced to 3 years and 4 months’ imprisonment, which was subsequently upheld by the Court of Cassation.

The Applicants’ Allegations

The applicants claimed that their right to hold meetings and demonstration marches had been violated due their imprisonment for inciting people to an illegal meeting.

The Court’s Assessment

The reason why the Ministry of Inferior resorted to such a practice appears to be that meetings have been organised every year under the name of Newroz celebrations, where terrorist organizations and their supporters make terrorist propaganda and perform violent acts. Any interference with the right to assembly can be justified only if it is convincingly demonstrated that it meets a pressing social need and is proportionate.

In the present case, there is no doubt that the applicants had been aware of the circular. However, it could not be demonstrated, beyond any doubt, that they had been aware of the ban imposed by the Governor's Office, which was the basis for their conviction. The inferior courts considered that the applicants’ having been aware of the circular was sufficient to acknowledge that they had committed the imputed offence knowingly and willingly. In this sense, the applicants’ allegation that the committee had informed them of the fact that they had completed the necessary procedures by bringing an action for annulment of the circular had neither been sufficiently examined nor clarified.

The inferior courts also failed to demonstrate the existence of a concrete and strong relationship between the leaflets the applicants had wanted to distribute and the violent acts that occurred on 20 March 2012. The Newroz celebrations announced through the leaflets could not be held; the applicants and the other persons listed as participants in the leaflets did not perform or attempt to perform the events at the place and on the date stated in the leaflets. The impugned events implied to have been caused by the applicants by distributing the leaflets did not occur at the stated place. The court decisions provided no concrete explanations as to the link between the applicants who had wanted to distribute leaflets which did not explicitly call for violence and the events that had occurred.

Thus, it has been concluded that the inferior courts failed to provide relevant and sufficient reasons to justify the existence of a need for sentencing the applicants -even to 3 years and 4 years’ imprisonment- in addition to seizing the invitation leaflets for a meeting banned by the Governor’s Office, as well as the existence of a fair balance between the competing interests.

Consequently, the Court has found a violation of the right to hold meetings and demonstration marches.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.