Abdullah Öcalan Başvurusu
Abdullah Öcalan, Application No: 2013/409, 25 June 2014
An investigation for propagating a terror organization was launched against publishing coordinator, editor and the person responsible for the preparation for the publishing of the book entitled “Kürdistan Devrim Manifestosu, Kürt Sorunu ve Demokratik Ulus Çözümü (Kültürel Soykırım Kıskacında Kürtleri Savunma) [The Kurdistan Revolutionary Manifest, Kurdish Problem and Democratic Nation Solution (Defence of Kurds in Grip of Cultural Genocide)]” written by the applicant. In the scope of this investigation, it had been decided to confiscate the copies of the book. Pursuant to that decision, 635 copies that are found in a textiles workplace was confiscated and 632 of them were destroyed. In the meanwhile, it was decided that there was no ground for prosecution regarding the publishing coordinator, editor and the person responsible for the preparation for the publishing of the book. Subsequently, another order was given to confiscate the copies of the book.
B) Judgment and Reasoning of the Court
According to the Court, the application falls within the scope of Articles 26 and 28 of the Constitution (§§ 66-69). It stated that the freedom of press covers, “the right to explain and interpret thoughts and convictions via means such as newspapers, journals and books and the right to publish and distribute information, news and criticisms” (§ 74). After underlining the importance of the freedom of press for democracy (§§ 74-75), the Court noted that this freedom is not absolute one. Consequently, the press is required to comply with the restrictions listed in Articles 26, 27 and 28 of the Constitution to prevent threats against “the internal and external security of the State, indivisible integrity of the State with its territory and nation, encouraging offending, riot or insurgence” (§ 76). The Court was of the opinion that the said interference was lawful and it served the legitimate purpose for fighting against the terror organization, PKK (§§ 81-88). Then the Court evaluated whether this interference was necessary and proportionate in a democratic society “which should be interpreted on the basis of pluralism, tolerance and open-mindedness” (§ 93). The interference would be against the democratic societal order if it “halts or renders extreme difficulty in the exercise of the right and freedom by bearing prejudice against its essence, renders it ineffective or if the balance between the means and objective of the limitation is disrupted in violation of the principle of proportionality” (§ 94). As for the Court’s view, public authorities have a narrow margin of appreciation on the restriction of discussions on societal matters which concern a party of the society like in the present case. Whereas the discretionary power becomes broader when it comes to interfere in the case of “racism, hate speech, war propaganda, encouraging violence and incitation, calls to riot or justifying terrorist acts” (§ 99).
In the present case, the Court agreed that national security does not make the interference lawful by itself. According to the Court, “the expressions related to the PKK terrorist organization and the context in which these are expressed, the identity of the author of the book, the time of its composition, its purpose, its potential impacts […] and the entirety of the remaining expressions in the book should be considered and evaluated as a whole” (§ 100). Furthermore, the fact that the applicant is the leader of an illegal organization did not make the interference lawful per se (§ 101). The Court stated that while assessing whether the expressions contained in the book encourage hate and violence among people, it must also be taken into account that the book was addressed to a narrowwe part of the society and the aim of the book is to indoctrinate the
ideology of the PKK terror organization (§ 106). The thoughts contained within the book cannot be deemed as encouraging violence and terror (§ 107). Moreover, the Court expressed its opinion that “The applicant analyses the Kurdish issue from his own perspective in an environment where the armed clashes with the security forces have been absent for some time; he demands an end to the armed conflict and a consensus regarding the democratic solution” (§ 108).
Finally, the Court emphasized that the destruction of the books was not made in conformance with the procedural regulations and ruled that Articles 26 and 28 of the Constitution were violated as a result of the interference which did not seem necessary and proportionate in a democratic society (§ 112).
C) Significance of the Judgment
This is one of the first judgements of the Constitutional Court given on the freedom of press. It set forth detailed criteria to be used for analysing whether the interfered expression contains violence and hatred. Furthermore, it serves as a significant example on how the principles of necessity and proportionality should be interpreted and applied in a democratic society when the freedom of press is at stake.