In a precedent-setting decision, Turkey's Constitutional Court has ruled that the travel ban imposed on human rights defender and author Nurcan Kaya constitutes a violation of the constitutional right to freedom of expression. This ruling -- which comes as a result of an application filed by MLSA Legal Unit -- is significant as it is the first from the court to directly link judicial control, in the form of a travel ban, to an infringement of freedom of speech.
The case revolves around Kaya, who was detained in October 2019 while trying to leave the country, due to a tweet from 2014 where she stated, "Not just the Kurds, but all peoples living in Kobane are resisting." For this, she was sentenced to one year and three months in prison in September 2021 on charges of propagandizing for a terrorist organization. During her trial, Kaya was subjected to a 1.5-month-long judicial control, including a travel ban, which the Constitutional Court has now found to infringe upon her freedom of expression.
Veysel Ok, Co-Director of the Media and Law Studies Association (MLSA), commented on the decision, stating that Turkish courts have increasingly imposed arbitrary judicial control measures on journalists, lawyers, and politicians, especially in cases involving news and information sharing. These measures, he notes, are often taken without sufficient grounds. OK emphasized that this decision by the Constitutional Court sets a precedent that judges must consider while making decisions on judicial control, reiterating the need for concrete reasons and discussions for such measures, which he compares to a form of detention.
Ok also highlighted the impact of this ruling on numerous journalists who have been deprived of their rights to travel and report due to their professional activities. He stressed the importance of individual appeals against such measures in safeguarding freedom of expression.
Details from the ruling
Further details of the decision revealed that Kaya was arrested and her passport confiscated while she was about to attend a United Nations meeting abroad, following an investigation started by the Istanbul Chief Public Prosecutor's Office on October 10, 2019, for "inciting hatred and hostility." The Constitutional Court's decision noted that Kaya's tweet, made on the day of the Turkish military operation in Northern Syria, was a matter of public interest and should have been considered within the scope of freedom of expression.
The court also emphasized that the travel ban had a significant punitive effect on Kaya, especially considering her role in international human rights activities. It criticized the Peace Criminal Judgeship for failing to consider less restrictive alternatives before imposing the travel ban and for dismissing an appeal against the ban on vague grounds.
Finally, the Constitutional Court acknowledged that the imposition of a judicial control decision, based on Kaya's social media post, had a deterrent effect on her willingness to engage in public discourse. The court awarded Kaya 13,500 Turkish Liras in moral damages for the violation of her rights.
