MLSA’s Veysel Ok says: “The Administrative Court has ruled that the Kurdish-language concert ban is unconstitutional, firmly saying ‘stop’ to similar unwarranted, unlawful prohibitions. With the decision the court has emphasized once again that freedom of expression is an essential right for all segments of society”
KEREM YILDIZ
The 6th Administrative Court of Istanbul overturned the decision of the Kadıköy District Governorship to ban the 30th Year event organized by the Mesopotamian Culture Center (MKC). The court ruled that the decision violated "freedom of expression, freedom of science and art, and the right to peaceful assembly."
The concert, titled "Berbang (Dawn)", organized by MKC, was banned by the Kadıköy District Governorship in 2021 due to "national security, public order, possibility of a crime being committed, and endangering the rights and freedoms of others."
Lawyers from MLSA’s Legal Unit challenged the decision dated October 15, 2021, claiming it was against the law and sought its cancellation as well as compensation for material and moral damages.
In its decision dated 5 July, the court referred to Article 13 titled "Limitation of Fundamental Rights and Freedoms", Article 26 titled "Freedom of Expression and Dissemination of Thought", and Article 27 titled "Freedom of Science and Art" of the Turkish Constitution. It underlined that freedom of expression and the freedom of science and art are fundamental pillars of a democratic society.
Veysel Ok, Co-Director of MLSA, commented on the decision, “I think this is the first decision that found a violation of freedom of expression related to the obstruction of Kurdish art. In recent years, the cultural and artistic activities of Kurds and other segments are being increasingly banned by decisions of local governarates without any legal basis. This ban doesn't only affect Kurdish artists, but also artists associated with lifestyles the government disapproves of, as we saw with the Hande Yener case."
The cancellation of singer Hande Yener's concert, scheduled as part of the 4th Aromatherapy Festival in Balıkesir by the AK Party Balıkesir Metropolitan Municipality on July 9, had drawn criticism.
Ok, who stated that the decision of the administrative court defends the freedom of all artists to create art, said, “The court has said 'stop' to unwarranted, unlawful bans. It underlined once again that freedom of expression is an indispensable right for all segments of society.”
Recalling that festival bans in Turkey have frequently been on the agenda in recent months, Ok emphasized that this decision clearly shows that all of these bans are also unlawful. He said, “This decision sets a precedent. The civil administrators should read this precedent and stop censorship against art.”
'Cannot be considered criminal just because HDP shared it'
The Administrative Court also stated that despite the Kadıköy District Governorship's decision indicating a "strong suspicion and belief" that a crime would be committed during the event due to the event announcement being shared by a social media of the Peoples' Democratic Party (HDP), no evidence of the alleged criminal suspicion had been presented to the court file by the Kadıköy Governor’s Office.
The court also noted that “an immediate, concrete, and imminent danger of a crime being committed” had not been clearly demonstrated.
In the decision, the court referred to the European Court of Human Rights (ECHR) rulings, stating, "freedom of expression protects not only ideas and information considered neutral or non-offensive, but also expressions that disturb, worry, or shock society, acknowledging that this protection is a requirement of plurality, tolerance, and open-mindedness in a democratic society.”
The court further noted in its decision, "Apart from situations inciting violence and removing the principles of democracy, radical preventative measures against freedom of expression and freedom of science and art harm democracy. Therefore, it is a requirement of a pluralistic democracy for the state to show patience and tolerance towards the non-violent and non-threatening behavior of individuals gathered for peaceful purposes in terms of public order."
Right to organize demonstrations and gatherings
The court, referring to a 2014 decision of the Constitutional Court about the Right to Organize Demonstrations and Gatherings, stated, "Individuals must also be protected against arbitrary interventions by public forces while exercising their guaranteed right to assemble."
Ok reminded that Saturday Mothers -- a civil society group in Turkey who seek justice for people disappeared under state custody since 1995 -- are being unlawfully prevented from going to Galatasaray Square every week. He stated that the decision also protects the actions of the Saturday Mothers: “Once again, it has been revealed in this decision we received from the Administrative Court that the obstruction of the right to demonstration and protest march is against the law.”
The court, which decided to cancel the ban operation, also decided to accept the material compensation request and ruled that the District Governorship should pay 39,368.13 TL in compensation to MKC.
