Individual Application

The Facts

The applicant was taken into custody within the scope of the investigation launched by the chief public prosecutor’s office into his social media posts. He was indicted for publicly inciting people to hatred and hostility and publicly insulting religious values adopted by a section of the society.

The criminal court (“court”) accepted the indictment and ordered the applicant’s continued detention. His challenge to this decision was dismissed by the incumbent assize court for not being contrary to the procedure and the law. Thereafter, the applicant lodged an individual application. In the meantime, he was released by the court at the first hearing.

The chief public prosecutor’s office issued another indictment in respect of the applicant for publicly insulting religious values adopted by a section of the society and requested the joinder of these two cases conducted against the applicant. The court, accepting the indictment, joined two cases. The proceedings have been still pending before the first instance court by the examination date of this individual application.

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security had been violated due to the unlawfulness of his detention ordered on account of his certain social media posts.

The Court’s Assessment

In the present case, the applicant was detained on remand due to some of his social media posts. According to the investigation authorities, the impugned posts constituted two separate offences laid down in Article 216 of the Turkish Criminal Code no. 5237. However, his detention was ordered merely on the basis of the offence of inciting people to hatred and hostility. 

The Court’s examination in the present application is confined to ascertaining whether the facts relied on by the judicial authorities in ordering the applicant’s detention for inciting public to hatred and hostility constituted a strong indication of criminal guilt. In this sense, the Court has made an assessment as to the impugned social media posts relied on by the investigation authorities merely with respect to this offence.

It is obvious that the applicant’s statements “…religious exploiters aiming to obtain money by giving IBAN under the pretext of faith… (“…iman numarasıyla İBANa çalışan din sömürücüleri…”)” involved a tone that otherized certain sections of the society. However, the impugned post did not, in any aspect, incite a certain section of the society to hatred and hostility against another section, based on differences in social class, race, religion, sect or region.

The applicant’s other post of the same date was referring to the news titled “Fatwa by the Presidency of Religious Affairs asking people not to provide financial aid to the Municipality: It is licit to give alms by making a donation to a national-level campaign (“Diyanetten Yardımı Belediyeye Yapmayın Fetvası: Zekatların Ulusal Düzelde Kampanyaya Bağışı Caizdir”). It is evident that the impugned post involving the expressions “Then, there appears those mad who provoke the poor-fellow believers by asking whether faith or IBAN. As you easily see, all matter is an IBAN fight (“Ondan sonra iman mı İBAN mı diye garİBAN imanlıları tahrik eden manyaklar çıkıyor. Görüyorsunuz bütün olay İBAN kavgası”) had a tone degrading the groups who provided support, notably on the basis of their religious thoughts, for aid campaigns. However, nor can this post be considered to have an element inciting sections of the society to hatred and hostility against one another or involving a call for violence.   

One of the issues that are to be highlighted regarding these two impugned posts is the failure on the part of the investigation authorities to demonstrate the imminent danger, a requisite element for the offence of inciting people to hatred and hostility underlying the applicant’s detention. The investigation documents did not point out what kind of a concrete danger was posed, by these posts, to public order.

The investigation authorities referred, in this context, to the fact that the posts received many likes by several persons on social media, which cannot be however regarded as a situation posing a concrete threat to public peace in any way. There was no concrete finding as to the interaction and reaction caused on the masses by the applicant’s posts, from the standpoint of the criteria set forth in the Court of Cassation’s judgments. 

In this sense, it has been considered that in the present case, the investigation authorities, in their findings and assessments in the investigation documents, could not sufficiently demonstrate the existence of strong indication of criminal guilt required for ordering detention for inciting people to hatred and hostility.

Consequently, the Court has found a violation of the right to personal liberty and security.