Individual Application

The Facts

The applicant was taken into custody and subsequently detained on remand for his alleged membership to a terrorist organization, disseminating terrorist propaganda, causing damage to public property and resisting the police officers so as to prevent them from performing their duties. The incumbent assize court convicted the applicant for his membership of a terrorist organization. Thereafter, pursuant to the Law no. 6352 on the Amendment to Certain Laws for Increasing the Efficiency of Judicial Services and the Suspension of Prosecution and Penalties Regarding Offences Committed through Press, the incumbent court ordered suspension of the prosecution against the applicant. On the applicant’s appeal, the first instance decision was upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that his right to hold meetings and demonstration marches had been violated as his participation in certain demonstrations had been relied on as a ground in his conviction of membership of a terrorist organization.

The Court’s Assessment

In the present case, the applicant’s participation in certain demonstrations was used as evidence during the criminal proceedings conducted with respect to his alleged membership of a terrorist organization. Accordingly, the applicant’s right to hold meetings and demonstration marches was undoubtedly interfered with. The impugned interference will be in breach of Article 34 of the Constitution, unless it complies with the conditions set out in Article 13 of the Constitution.

The first instance court punished the applicant not on account of his activities at these demonstrations but of his membership of a terrorist organization. However, the court referred to his participation in the demonstrations, where violent acts took place and terrorist propaganda was disseminated, so as to indicate his membership of the said organization and to point to the persistent nature of his activities.

In one of its recent judgment, the Court has underlined that the disclosure of support in favour of a terrorist organization, namely the PKK, at meetings and demonstrations that turned into a propaganda event constitutes a severe threat against the democratic society.

Also given the principle of circumstantial evidence applicable in the law on criminal procedure, it is possible for the first instance court to consider the applicant’s participation in the meetings and demonstrations, which were held upon the terrorist organization call and served the purpose of disseminating terrorist propaganda, as evidence in convicting him.

Besides, it was not the sole ground relied on by the first instance court in reaching the conclusion that the applicant was a member of the terrorist organization. The first instance court took into account the phone records, intelligence information, police reports, denunciations, the applicant’s conducts and roles during certain demonstrations as well as other available evidence as a whole.

The Court considers that given the way in which the first instance court assessed the available evidence in respect of the applicant, there is no inconsistency between his participation in certain demonstrations and the other evidence which could be qualified as a terrorist propaganda or which is an indicator of his sympathy towards the organization.

In the present case, the first instance court concluded that the applicant posed a severe threat to the democratic life for inciting to violence and leading to spread of undemocratic methods on account of his acts and behaviours.  Therefore, the applicant’s punishment met a pressing social need. It has been observed that the first instance court struck a fair balance between the society’s right to live in an environment free of terror and the applicant’s right to hold meetings and demonstration marches. Accordingly, the impugned interference with the said right could not be considered to be incompatible with the requirements of a democratic society.

Consequently, the Court has found no violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution.