Press Release No: Individual Application 63/23
Press Release concerning the Judgment Finding No Violation of the Right to Hold Meetings and Demonstration Marches due to Acceptance of Certain Activities as Evidence for the Offence of Membership of a Terrorist Organisation
On 27 September 2023, the Plenary of the Constitutional Court found no violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution, in the individual application lodged by Şerife Alp (no. 2018/25163).
The applicant, acting mayor of the Kızıltepe Municipality, was sentenced for aiding a terrorist organisation, by the incumbent assize court, at the end of the proceedings where he had been tried for alleged membership of a terrorist organisation, disseminating propaganda of the terrorist organisation and contravening the Law no. 2911 on Assemblies and Marches. On appeal, the Court of Cassation quashed the first instance decision, stating that the applicant’s activities taken as a whole constituted membership of a terrorist organisation. As the assize court issuing the initial decision, which was quashed by the Court of Cassation, had been abolished, the applicant’s case was heard by another assize court. The assize court taking over the case (“court”) acquitted the applicant on the grounds that she had not committed any criminal act on behalf of the said organisation. The relevant public prosecutor appealed the acquittal decision before the Court of Cassation, which quashed it as the applicant’s activities indeed constituted membership of a terrorist organisation. The court then sentenced the applicant for membership of the terrorist organisation. On appeal by the applicant, the Court of Cassation upheld the decision with a minor amendment.
The Applicant’s Allegations
The applicant maintained that some of her constitutionally safeguarded activities had been relied on as evidence for her conviction for the offence of membership of a terrorist organisation, which constituted a violation of her right to hold meetings and demonstration marches.
The Court’s Assessment
In the present case, the question of whether the applicant is a member of a terrorist organisation may be clarified through a comprehensive assessment of her activities and attitudes as a whole. During the demonstrations, the groups, including the applicant, chanted slogans, which manifestly amounted to the propaganda of the terrorist organisation and terrorist acts; praised terrorist acts; held placards or chanted slogans that emphasised the terrorist organisation’s power of intimidation; legitimised its acts of violence and glorified its members having involved in the violent acts; gathered around common ideas; and engaged in various actions and activities in order to reinforce the tie among them.
As reported by the inferior courts, the applicant involved in various activities whereby the PKK, a terrorist organisation posing a threat, was supported and its violent acts were glorified, for at least 21 times in a short period less than one year. Her position as the acting mayor at the relevant time did not automatically justify her support for the acts and activities referred to. On the contrary, it has been considered that the applicant, in her capacity as the acting mayor, facilitated the participation of many people in the meetings, all of which were organised upon the calls by the terrorist organisation in question for people to join or embrace it. It has been also concluded that given the calls by the terrorist organisation, her acts and activities taken as a whole served the purpose of ensuring the society to adopt the idea that violence was a justified and effective method, as well as of enabling the ideas and convictions underlying the terrorist acts to take root. Besides, it has been observed that given the intensive nature of her acts and activities, the applicant devoted a certain amount of effort and time to achieve this objective. It has been accordingly considered that the applicant did not coincidentally attend the meetings providing explicit support and endorsement for the terrorist organisation and terrorist acts.
Therefore, under the particular circumstances of the present case, the applicant’s allegations that she was convicted by the first instance court due to her activities that did not indeed constitute an offence and amounted merely to the exercise of her constitutional rights cannot be regarded as reasonable. The court provided relevant and sufficient reasons for demonstrating that the reliance on the applicant’s imputed activities as evidence met a pressing social need. It also explained in plausible manner that her activities had verified and validated the findings that the applicant had intentionally and knowingly involved in the hierarchical structure of the PKK.
Moreover, given the severe effects and outcomes of terrorist offences on individuals, the society and the State, the Court has considered that the sentence imposed on the applicant aimed to strike the requisite fair balance between the society’s right to live in an environment, free from any form of terrorism, and the applicant’s right to hold meetings and demonstration marches. The impugned sentence was thus found proportionate. Accordingly, the interference with the applicant’s right to hold meetings and demonstration marches cannot 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.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.