MLSA takes the ban of the Kurdish theater play Bêrû to the Constitutional Court
In October 2020, the Istanbul Gaziosmanpaşa’s District Governorship banned the staging of the Kurdish theater play “Bêrû.” Following the rejection of the lawsuit for the suspension of the execution of that ban, a higher court now has also rejected the appeal application. The Legal Unit of MLSA has taken the decision to the Constitutional Court.
The lawsuit filed by the Legal Team of Media and Law Studies Association (MLSA) after the Kurdish play “Bêrû” staged by Teatra Jiyana Nû (New Life Theatre) was banned by the İstanbul Gaziosmanpaşa District Governorship on the grounds of Article 17 of the Law No. 2911 on Assemblies and Demonstrations and Article 32/ç of the Law No. 5441 on Provincial Administration had been rejected. Following the rejection by the Istanbul 10th Administrative Court and the rejection of MLSA’s appeal against this by the higher court, MLSA’s Legal Unit has brought the decision before the Constitutional Court (TCC). In the petition, it was emphasized that banning the play not only violated the rights of the theater actors but also those of the audience. Further, the application highlights: “This ban, which constitutes an interference with the rights to freedom of expression and freedom of assembly, violates Articles 25, 26, 27, and 34 of the Constitution as well as Articles 10 and 11 of the European Convention on Human Rights. Accordingly, the administrative act in question does not meet the criteria of being predictable by law, of pursuing a legitimate aim and of being necessary in a democratic society.” Emphasizing that any limit to freedom of expression needs to be examined according to whether a compelling public need exists for this limitation, the application states that “Although it is true that states have wide discretionary powers, this discretion is not unlimited.”
The application also underlines that the freedom of science and the arts, protected by Article 27 of the Constitution, and the freedom to hold meetings and demonstrations, protected by Article 34 of the Constitution and Article 11 of the European Convention on Human Rights (ECHR) have been violated: “It is apparent that the ban of the theater play was not necessary in a democratic society. The reasons cited by the Gaziosmanpaşa District Governorship to ban the play are neither sufficient nor appropriate.”
Reminding the court that the play was played in Turkish before, MLSA lawyers argued that the Gaziosmanpaşa District Governorship banned the play because it was in Kurdish and thereby acted against the principle of equality before the law: “The decision violated Article 10 of the Constitution and Article 14 of the European Convention on Human Rights. Article 10 of the Constitution prohibits discrimination based on language, race, colour, religion and further similar aspects and prescribes that administrative actions should be based on the principle of equality before the law.”
MLSA lawyers further argued that the local court’s rejection of the filed lawsuit on the grounds that the plaintiff lacked standing to sue, violated the right to an effective remedy as protected by Article 13 ECHR.
The application also refers to the Ulusoy and Others/Turkey (App.No: 34797/03, 03/05/2007) of European Court of Human Rights (ECtHR), in which the court ruled that the ban of the Kurdish play “Komara Dinan Sermola” (Republic of Madmen), which was planned to be staged in 1999 by the theater group Teatra Jiyana Nû, and which constitutes a similar interference, was a violation of the right to freedom of expression.