‘Cannot be interpreted against the will of the Assembly’

The 16th Criminal Chamber of the Supreme Court of Appeals, by majority, upheld the 2.5 imprisonment sentence of HDP Kocaeli MP Gergerlioğlu for ‘making propaganda for an armed terrorist organization’, which is regulated in Article 7/2 of the Anti-Terror Law. While 4 of the 5 members upheld the sentence, one member remained in opposition.

In the decision, it was stated that Gergerlioğlu’s crime falls within the scope of the provision in Article 14 of the Constitution “None of the rights and freedoms included in the Constitution can be used in the form of activities aiming to destroy the indivisible integrity of the State with its country and Nation and to abolish the democratic, secular Republic based on human rights”. It was noted that there were different opinions regarding the change in 2001.


Reminding that the decision was changed from the provision in 2001 that the said Constitutional rights and freedoms cannot be used for the purpose of ‘destroying the state’, it was changed to ‘activities aiming to destroy these rights and freedoms’, as in Gergerlioğlu, there are differences of opinion on whether or not expressing an opinion is within the scope of ‘activity’. It was stated that. Criminal check 4 members ‘activities’ on the basis of the opinion of the Turkey Bar Association President Metin Feyzioğlu his “This arrangement is not the purpose of committing an act or crime type is based on the” made reference to the opinion.


Opposition member Yusuf Hakkı Doğan, on the other hand, drew attention to the contradictions in the decision regarding Gergerlioğlu and reminded that the reason for the accusation against Gergerlioğlu was to share the news and article on the T24 website during the ‘solution process period’. Doğan emphasized that Gergerlioğlu refused to accuse Gergerlioğlu saying “I did not make any comment that legitimizes the PKK terrorist organization” and drew attention to the fact that the links in the post have been blocked and the ban is still not imposed.


Doğan emphasized that the charge against Gergerlioğlu was not one of the exceptions to legislative immunity in Article 83 of the Constitution, and stated that he was elected as a deputy on 24 June 2018, but the Istanbul Regional Court of Justice rejected the appeal request of the 3rd Criminal Department on 7 December 2018. Doğan explained that it is unlawful for Gergerlioğlu to continue the trial during the period when he gained legislative immunity:

“… Considering the nature of the alleged crime, the 83/2. It is obligatory to decide on the suspension of the public case on the grounds that it is not one of the exceptional cases specified in the article, and that the defendant has obtained legislative immunity from the moment he was elected as a deputy. “

Regarding his view of ‘activity’ in Article 14 of the Constitution, Doğan said: “The difference of opinion regarding the formation of criminal elements is a legal consequence, however, in accordance with the procedure, Article 14 of the Constitution is based on the spirit and essence of the Constitution and international conventions and universal rules of law and local court decisions settled. contrary to ”he made the assessment.


“Is the crime of making propaganda for a terrorist organization one of the crimes within the scope of Article 14 of the Constitution or not?” Doğan asked, objecting to the assessment made on the article in question:

“When we evaluate the legal dimension of the defendant’s action; In the act of the accused, ‘it is not possible to admit the in flagrante delicto’, the crime subject to investigation is not one of the crimes subject to exception in the direction of prosecution within the scope of Article 14 of the Constitution, has.”


“The purpose of using the term ‘activities’ by removing ‘no activity’ and ‘encouragement and provocation’ included in the first version of Article 14 of the Constitution from the text instead of ‘any thought and consideration’ was made only to exclude statements of thought and propaganda from the scope. Judicial authorities cannot comment on the spirit and essence of the Constitution against the will of the parliament while making their decision. This is against the principle of legal security. “


“High courts are the pioneers of local courts in the use and protection of fundamental rights and freedoms in the Constitution and accepted international conventions. It sheds light on the implementation of the decisions, it cannot stay behind the local courts. Legal security; It is the guarantee of democratic society, modern life, economic investment and development. Ensuring legal security is the primary duty of judicial authorities. “

Source: Cumhuriyet Gazetesi – Güncel by www.cumhuriyet.com.tr.

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