Constitutional Court: There is No Violence, Threat or Hate in His Speech

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The Constitutional Court has pronounced its justified ruling on Peoples' Democratic Party (HDP) former Ankara MP Sırrı Süreyya Önder.

Announcing its ruling yesterday (October 3), the Court concluded that the right to freedom of expression of Önder has been violated as he was sentenced to 3 years, 6 months in prison for allegedly "propagandizing for a terrorist organization" with his Newroz speech in 2013.

Resolution process

The General Assembly of the Constitutional Court gave its verdict on Önder unanimously. Referring to the resolution process initiated by the state to resolve the Kurdish question, the justified ruling has indicated,

"Around the time when the statement in question was made, a series of administrative and political openings were introduced by the state to end the violence and terror incidents perpetrated by the PKK*.

"Incidents of violence and terror considerably decreased during this process, which was also called the resolution process."

'Leader of Kurds' expression and element of 'violence'

Referring to the "leader of Kurds" expression used by Önder in his Newroz speech, the Court has referred to both the provisions of the domestic law and judgements of the European Court of Human Rights (ECtHR).

"In several judgements given by the ECtHR, it is concluded that referring to Abdullah Öcalan** as 'the leader of Kurds' does not encourage to commit a crime by itself", the Court has indicated.

Reminding that the Supreme Court of Appeals of Turkey has also adopted a method for evaluating similar expressions, the Court has said,

"The Supreme Court of Appeals has concluded that in incidents where the defendant chants slogans in favor of the founder of terrorist organization, the scene of incident, its conditions and addressees, audience and the potential to mobilize the mass should be taken into consideration".

Regarding the element of violence, the Court has also concluded, "It needs to be once again underlined that the statements that do not contain expressions inciting people to use violence and do not pose a risk of terror crimes cannot be considered an encouragement to use the methods of the terrorist organization that involve force, violence or threat".

As to the use of "Kurdistan", the Constitutional Court has indicated that "the specific conditions where the related speech was held as well as the other expressions used throughout the speech need to be taken into account in determining what the word 'Kurdistan' means".

'He informed the people'

In his ruling, the Court has also stated that with his Newroz speech subjected to the lawsuit and his conviction, Önder "informed the crowd about the ongoing resolution process, which he referred to as peace process".

"Applicant indicated that they, as the Peoples' Democratic Congress, will demand peace in the future as well and search for ways to reconstruct Turkey with the participation of the whole society and with full democracy", the Court has indicated and added, "The applicant also expressed that they will keep on their struggle with the will and determination of peace until a life in a full democratic environment becomes a reality".

'He did not defend methods of force, violence or threat'

The Constitıtional Court has also referred to the local court, which previously concluded that Önder "attempted to create a negative perception about the legitimate and rightful anti-terror operations conducted by the security forces of the State of the Republic of Turkey".

Regarding this conclusion, the Court has indicated that "it cannot be a legal evaluation to deem a statement as terror propaganda without showing which specific expression of opinion encouraged violence and with an abstract reference to an attempted perception creation".

The Court has also underlined that the local court "did not make any explanations about which statement of the application led to this conclusion".

Considering the "historical context of the speech, the objective meaning of the expressions used by the applicant and his full speech in its entirety", the Constitutional Court has concluded that he did not "defend the force, violence or threat involving methods of the terrorist organization".

"It has not been concluded that he praised members of the organization conflicting with security forces, glorified the terrorist organization, incited hatred towards the security forces directly involved in the conflicts or encouraged the use of violence", the Court has indicated further.

Önder still behind bars

Announcing its ruling yesterday, the Constitutional Court has concluded that the right to freedom of expression of Sırrı Önder has been violated as he was sentenced to 3 years, 6 months prison for allegedly "propagandizing for a terrorist organization" with his Newroz speech in 2013.

After the verdict was announced, several people including HDP MPs Filiz Kerestecioğlu, Meral Danış Beştaş and lawyers went to Kandıra Prison in İzmit. However, Önder was not released from prison yesterday.

Sharing a message on Twitter lawyer Ramazan Demir said,

"It has been hours since the verdict of the Constitutional Court on Sırrı Süreyya Önder reached the İstanbul 26th Heavy Penal Court. Though they were informed about the verdict, the court board and the principal clerk left the courthouse. Önder, who has to be released immediately, cannot be free because the judges who will enforce the verdict are not at court".

What happened?

A lawsuit was filed against former HDP Co-Chair Selahattin Demirtaş and former MP Sırrı Süreyya Önder due to their Newroz speeches in 2013.

Announcing its ruling on September 7, 2018, the İstanbul 26th Heavy Penal Court ruled that Demirtaş shall be sentenced to 4 years, 8 months in prison and Sırrı Süreyya Önder to 3 years, 6 months in prison on charge of "propagandizing for a terrorist organization".

The 2nd Penal Chamber of the İstanbul Regional Court of Justice, the court of appeal, upheld the verdicts of conviction of both politicians on December 4, 2018. Önder was imprisoned on December 6, 2018. (TP/SD)

* PKK: Kurdistan Workers Party; ** Abdullah Öcalan: PKK Leader